Articles: Schwarzenegger's Mistake: Clemency and Tookie Williams December 27, 2005: The Jurist

Schwarzenegger's Mistake: Clemency and Tookie Williams
By Austin Sarat

By denying clemency to Stanley "Tookie" Williams Arnold Schwarzenegger
did more than allow another execution to be carried out. He broke faith
with the understandings of those who wrote our Constitution and damaged
the intricate balance of our constitutional government. Casually
dismissing Williams's contention that he had been "reformed
and...redeemed for his violent past," Governor Schwarzenegger's treated
his own clemency power as a narrow and limited one. As he explained, the
clemency power should not be used "to nullify the jury's decision of
guilt and sentence...." except to prevent miscarriages of justice. This
is not the way the clemency power was understood by those who made the
power "to grant pardons and reprieves" part of our constitutional
system, nor, throughout most of our history, by those charged with
interpreting that power or with exercising it.

Although the original versions of the New York and Virginia Plans that
provided the frameworks for debate at the Constitutional Convention
included no provisions for pardon, revisions to both plans eventually
did. The power that emerged from the convention was regarded by the
Framers of the Constitution as necessary to a humane and effective
scheme of government. Defending executive clemency Alexander Hamilton
said, "Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little fettered as possible."

Hamilton thought that the pardon power would and should be used
mercifully, otherwise "justice would wear a countenance too sanguinary
and cruel" and, in its merciful use, would ennoble those who wielded it.

Hamilton's understanding of clemency has been reiterated throughout
American history by judges and politicians alike. Writing in 1833, in
the first clemency case to reach the United States Supreme Court, Chief
Justice John Marshall called pardon "an act of grace, proceeding from
the power entrusted with the execution of the laws...." Twenty years
later, the Supreme Court again embraced a very broad view of the
clemency power, saying "Without such a power of clemency, to be
exercised by some department or functionary of a government, it would be
most imperfect and deficient in its political morality, and in that
attribute of Deity whose judgments are always tempered with mercy." In
1866 Justice Field wrote approvingly of what he called the "benign
prerogative of mercy."

Lest anyone think that this is an outmoded, old fashioned conception of
clemency, from time-to-time a similar standard has been embraced by
governors and judges in our own era. Terry Sanford, Governor of North
Carolina from 1961-65, provides one example of such a view. "The
Executive," Sanford wrote "is charged with the exercise in the name of
the people of an ... important attitude of a healthy society - that of
mercy beyond the strict framework of the law.... Executive clemency does
not involve the changing of any judicial determination. It does not
eliminate punishment; it does consider rehabilitation. To decide when
and where such mercy should be extended is a decision which must be made
by the Executive....It falls to the Governor to blend mercy with
justice, as best he can, involving human as well as legal
considerations, in the light of all circumstances after the passage of
time, but before justice is allowed to overrun mercy in the name of the
power of the state."

Chief Justice William Rehnquist, in a 1993 Supreme Court decision,
called clemency the sovereign's "power to extend mercy, whenever he
thinks it is deserved....", and five years later said it was "a matter
of grace." Rehnquist suggested that this power was designed to allow the
executive "to consider a wide range of factors not comprehensible by
earlier judicial proceedings and sentencing determinations."

Yet, at least in the context of capital cases, this broad understanding
of clemency steadily has been losing favor along with clemency itself.

From 1994-2004 (excluding former Illinois Gov. George Ryan's mass
commutation of his state's death row) 25 clemencies were granted across
the entire country; forty years earlier in the decade 1954-1964 there
were 198 clemencies. As one commentator puts it, capital clemency has
"died its own death, the victim of a political lethal injection and a
public that overwhelmingly supports the death penalty." Thus at the
outset of his administration, then Texas Governor George Bush embraced a
standard for clemency that all but ensured that few if any death
sentences would be seriously examined. "In every case," [Bush] wrote in
A Charge to Keep, "I would ask: Is there any doubt about this
individual's guilt or innocence? And, have the courts had ample
opportunity to review all the legal issues in this case?" During his six
years as governor 150 men and two women were executed in Texas; Bush
allowed the execution to proceed in all cases but one. As the journalist
Alan Berlow notes, "This is an extraordinarily narrow notion of clemency
review: it leaves little, if any, room to consider mental illness or
incompetence, childhood physical or sexual abuse, remorse,
rehabilitation, racial discrimination, the competence of the legal
defense, or disparities in sentences between co-defendants or among
defendants convicted of similar crimes." It leaves little room for the
kind of claims made by, and on behalf of, Tookie Williams. It is this
cramped conception that animated Schwarzenegger's decision to allow
Williams's execution to proceed.

Many governors today have turned crime fighting, tough-on-crime policy
into a strategy for building political coalitions and strengthening
their electoral prospects. Many are afraid that granting clemency to
convicted murderers will leave them vulnerable to damaging charges that
they are soft-on-crime. As a result, they have let the clemency power
atrophy rather than courageously exercising their discretion to accord
mercy to the condemned. In doing so they have departed from the original
understanding of that power and historical practice. In the Williams
case, Governor Schwarzenegger missed an opportunity to reverse that
trend and did a disservice not only to Tookie Williams, but to all of us.
- - -

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and
Political Science and Five College Fortieth Anniversary Professor at
Amherst College and author of Mercy on Trial: What It Means to Stop an

Copyright 2005 The Jurist

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New Resources: New Book Focuses on Clemency in Capital Cases A new book by Professor Austin Sarat (pictured) focuses on clemency's role in the U.S. criminal justice system: "Mercy on Trial: What It Means to Stop an Execution." According to U.S. Senator Edward Kennedy, "This thoughtful book should be read by every citizen who cares about the issue, and by every governor and president entrusted with the power to punish or pardon." In "Mercy on Trial," Sarat reviews the complexities of clemency and examines issues such as rehabilitation. (Princeton University Press, 2005).

See Books on the Death Penalty. See also Clemency. Happy Holidays!

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Baltimore Cardinal Makes Historic Visit With Death Row Inmate Awaiting Execution Cardinal William H. Keeler (pictured), archbishop of Baltimore and chair of the U.S. Conference of Catholic Bishops' Committee for Pro-Life Activities, made an historic visit to Maryland's death row and met with Wesley Eugene Baker, who is scheduled to be executed in a few days. Cardinals Keeler, Theodore McCarrick of Washington, DC, and Michael Saltarelli of Wilmington, Delaware also sent a letter to Maryland Governor Robert Ehrlich urging him to commute Baker's sentence to life in prison without parole.

"We write as believers, who know that God's justice is seasoned by His mercy. Mercy is what we ask of you in the case of Mr. Baker. . . . [Church teaching] acknowledges the right of legitimate government to resort to  the death penalty, but it challenges the appropriateness of doing so in a society now capable of defending the public order and ensuring the public's safety. . . . [N]o decision of your gubernatorial service can be more momentous than the decision to extend, or to withold the hand of mercy," the Cardinals wrote in their appeal to Ehrlich.

After his visit, Keeler noted that Catholic leaders have opposed the death penalty for a quarter of a century, and he stated that the late Pope John Paul II believed that capital punishment is "really sending the wrong message about the sacredness of life." Last month, during the annual meeting of the U.S. Conference of Catholic Bishops, the Bishops approved "A Culture of Life and the Penalty of Death," an 18-page statement criticizing the administration of the death penalty in the U.S. and stating that it offers a false hope of healing to the survivors of crime.

Keeler's visit to Maryland's death row was the first in modern times by a Maryland bishop. (Baltimore Sun, November 29, 2005). See Clemency and New Voices.

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Virginia Governor Commutes Lovitt's Death Sentence Virginia Governor Mark Warner (pictured) commuted the death sentence of Robin Lovitt to life in prison without parole, a decision he made to "ensure that every time the ultimate sanction is carried out, it is done fairly." Warner noted his decision was based on concerns that Lovitt could not pursue new DNA testing on crucial evidence that could prove his innocence. The evidence, a pair of scissors that prosecutors say Lovitt used as the murder weapon, had been thrown out by a Virginia court clerk. During Lovitt's trial, DNA tests on the scissors were inconclusive, and Lovitt's fingerprints were not found on the scissors. His attorneys argued that losing the weapon had resulted in "profound unfairness" because Lovitt could not request more modern DNA tests on the evidence.

"I believe clemency should only be exercised in the most extraordinary circumstances. Among these are circumstances in which the normal and honored processes of our judicial system do not provide adequate relief - circumstances that, in fact, require executive intervention to reaffirm public confidence in our judicial system," Warner said as he announced his decision to commute Lovitt's sentence.

Lovitt was scheduled to be the 1,000th person executed since capital punishment was reinstated, and he is the first person to have his death sentence commuted by Warner. (New York Times, November 30, 2005). See Clemency and Life Without Parole.
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Conservatives Urge Virginia Governor to Grant Clemency Request as 1,000th Execution Nears

A clemency petition filed with Virginia Governor Mark Warner on behalf of Robin Lovitt, who is scheduled to be executed on November 30, has gained the backing of some of the state's most conservative voices. Among those encouraging Warner to commute Lovitt's sentence to life are former Republican Virginia attorney general Mark L. Earley, Rutherford Institute founder John W. Whitehead, and Lovitt's attorney Kenneth Starr, who now serves as dean of the Pepperdine University School of Law.

In May 2001, three weeks after Virginia legislators passed a bill ordering that all biological evidence in death penalty cases be sent to the state forensics lab for safekeeping in case future DNA or other testing was needed, the Arlington County Court ordered destruction of evidence in Lovitt's case. The clerk responsible for destroying the evidence claimed ignorance of wrongdoing.  Original DNA testing in Lovitt's case was inconclusive. In his appeal for clemency for Lovitt, Starr noted that DNA testing has greatly improved since the original tests were conducted and that "through no fault of his own," Lovitt cannot take advantage of new DNA technologies.

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Editorial Praises Clemency for Mentally Ill Indiana Man Facing Execution

A recent editorial in The Washington Post praised Indiana Governor Mitchell Daniels for commuting the death sentence of Arthur Baird, who suffers from severe mental illness.  The editorial noted:  

Indiana Gov. Mitchell E. Daniels Jr. (R) acted wisely and humanely this week in commuting the death sentence of one Arthur Paul Baird II. There is no question that Mr. Baird killed his parents and his pregnant wife back in 1985. There is also little question that he is seriously mentally ill and was so then. His mental illness was clearly a significant factor in the killings and just as clearly led directly to his death sentence. Because of his delusional state, Mr. Baird inexplicably rejected a plea deal the state had offered him that would have spared his life. Jurors in his case have indicated that had life in prison without parole -- not an option in Indiana at the time -- been available, they would have chosen that rather than death. Family members were similarly inclined. Yet the state parole board recommended against clemency on a 3 to 1 vote, and the Indiana Supreme Court, also divided, likewise declined to step in. Mr. Daniels deserves credit for taking responsibility for preventing Mr. Baird's execution.

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Seriously Mentally Ill Man Receives Commutation in Indiana

Arthur Baird, who was to be executed on August 31 for murdering his parents in Indiana, received a commutation to a life sentence from Governor Mitch Daniels.  (, Ch.8, Indianapolis, Aug. 29, 2005). Two members of the Indiana Supreme Court had written that Baird was "only marginally in touch with reality," in a decision in which the majority had allowed the execution to go forward.  A report to the court from Dr. Philip M. Coons, a professor emeritus of psychiatry at the Indiana University School of Medicine, found Baird to be "grossly psychotic and delusional" and mentally unfit to be executed. Indiana's parole board had  recommended against a commutation. 

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Georgia Board To Pardon Woman 60 Years After Her Execution

The Georgia Board of Pardons and Paroles has announced that it will issue a formal pardon this month for Lena Baker (pictured), the only woman executed in the state during the 20th century. The document, signed by all five of the current board members, will note that the parole board's 1945 decision to deny Baker clemency and allow her execution was "a grievous error, as this case called out for mercy." Baker, an African American, was executed for the murder of Ernest Knight, a white man who hired her . Baker was tried, convicted, and sentenced to die in one day by an all-white, all-male jury. Baker claimed she shot Knight in self-defense after he locked her in his gristmill and threatened her with a metal pipe. The pardon notes that Baker "could have been charged with voluntary manslaughter, rather than murder, for the death of E.B. Knight." The average sentence for voluntary manslaughter is 15 years in prison. Baker's picture and her last words are currently displayed near the retired electric chair at a museum at Georgia State Prison in Reidsville.

Read More 8,325 reads
Texas Governor Commutes 28 Juvenile Offender Death Sentences Texas Governor Rick Perry (pictured) has commuted the death sentences of 28 juvenile offenders to life in prison, an act that brings the state into compliance with a recent U.S. Supreme Court ruling that deemed the practice of executing those who were under 18 at the time of their crime unconstitutional. While some of these inmates will remain in more restrictive segregation, many will have their first exposure to prison work programs, schooling, and jobs within a prison unit.

Current Texas sentencing laws give jurires in capital murder cases the choice of sentencing defendants to executon by lethal injection or life in prison with the possibility of parole after 40 years. Last week, Perry signed into law a change that will remove the possibility of parole in life sentences, but the change will not apply retroactively to crimes committed before Septemeber 1, 2005. (Associated Press, June 22, 2005) See Juveniles, Life Without Parole, and Clemency. See also DPIC's Roper v. Simmons Web page.
Read More 8,555 reads
BOOKS: Clemency
  • A new book by Professor Austin Sarat focuses on clemency's role in the U.S. criminal justice system: "Mercy on Trial: What It Means to Stop an Execution." According to U.S. Senator Edward Kennedy, "This thoughtful book should be read by every citizen who cares about the issue, and by every governor and president entrusted with the power to punish or pardon." In "Mercy on Trial," Sarat reviews the complexities of clemency and examines issues such as rehabilitation. (Princeton University Press, 2005).

See Books on the Death Penalty. See also Clemency.


  • "Justice Denied, Clemency Appeals in Death Penalty Cases" - In "Justice Denied: Clemency Appeals in Death Penalty Cases," (Northeastern University Press, 2002) Professor Cathleen Burnett examines Missouri's administration of the death penalty. While researching all 50 applications for executive clemency submitted to Missouri governors since the state's reinstatement of the death penalty in 1977, Burnett discovered a series of problems directly related to flawed police investigations, instances of prosecutorial misconduct, examples of inadequate defense counsel, and the appellate court's review of capital cases. She also investigated the political ramifications of death penalty cases for trial judges in capital cases and Missouri governors. See the University of Missouri-Kansas City's Press Release.

Read More 12,644 reads