Death row: Does personal reform count?

"This is a terribly difficult decision - not just because of all the competing considerations, from the political to the spiritual - but because there are no clear guidelines given to governors," says Robert Batey, professor of criminal law at Stetson University College of Law in DeLand, Fla.

Laws differ in the 38 states with clemency provisions. Some require boards or commissions to make recommendations or to act in tandem with the governor. In other states the governor alone decides, with no legal, ethical, or moral criteria spelled out for guidance.

"Governors ... can decide not only whether a person is redeemed or not, [but] they can decide [inmates] have changed and put them to death anyway," says Professor Batey. "In the case of Mr. Schwarzenegger, it's up to him to create his own reasons."

The origin of clemency in the US predates the Constitution and was considered a necessary corrective to the severity of the criminal-justice system of the day. It has been revisited and sharpened regularly ever since. "Clemency is an act of grace," wrote Chief Justice John Marshall in 1833, and Oliver Wendell Holmes said in 1927: "[It] is part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare be better served by inflicting less than what the judgment fixed."

Exactly how to define and weigh the public welfare is Schwarzenegger's prerogative, experts say. Beyond the consideration of Williams's personal fate, the governor must weigh the consequences, symbolic and otherwise, to others.

"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."

• Thirty-three states give their governors exclusive, unconditional power to grant pardons or reduce prison sentences.

• Alabama, Connecticut, Georgia, Idaho, and Texas have stripped their governors of the power to pardon and instead established clemency boards, whose members are appointed by the governor.

• In nine states, the governor can only consider clemency recommendations issued by a clemency board.

• In Nebraska, Nevada, and Utah, the governor sits as a member of a pardoning board, making clemency decisions in cooperation with board members.

Source: Stateline.org

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