Death row: Does personal reform count?
A clemency request in California revives the debate over rehabilitation's role.
LOS ANGELES — 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. As in the 2000 Texas case of convicted murderer Karla Faye Tucker, who experienced a death-row religious conversion and became a model inmate, the case of Stanley "Tookie" Williams is reviving the debate over rehabilitation and its role in the US penal system.
Mr. Williams, cofounder of the notorious L.A. street gang the Crips and a four-time murderer, has been in prison since 1981. Since then, he has become an antigang crusader whose work earned him several Nobel Peace Prize nominations.
His appeal for clemency on the claim of personal redemption poses a personal, political, and philosophical dilemma for Gov. Arnold Schwarzenegger (R), who must decide before Dec. 13 whether Williams will live or die. Like governors before him, notably George W. Bush of Texas, who proclaimed one such decision "the most agonizing part of being governor," Mr. Schwarzenegger is finding that clemency cases can ignite intense passions - and often leave large blocs of voters feeling aggrieved, no matter how the decision comes down.
A high-profile clemency decision also immediately confronts Virginia Gov. Mark Warner (D). He has denied such petitions from 11 other death-row prisoners, but activists working on behalf of Robin Lovitt say the fact that DNA evidence in his case was improperly destroyed - and might have exonerated him - is enough to merit a commutation to a life sentence. If the execution proceeds as scheduled Wednesday, Mr. Lovitt would become the 1,000th person to die under death-penalty laws since 1976.
Grants of clemency have declined in the past 25 years, with about 1,000 death-row inmates having sought it and 229 receiving it. Of those, 167 came from one governor in one act in 2000: former Gov. George Ryan of Illinois, who called the death-penalty system in his state "arbitrary and capricious and therefore immoral." His action has since been excoriated by victims' families and lawmakers, even as it is lauded by death-penalty opponents.
"We as a country have been dramatically changing our notions about clemency and the death penalty in the past half decade," says Richard Dieter, director of the Death Penalty Information Center, which opposes capital punishment and analyzes death-penalty trends. After two decades of meting out death sentences at a steady rate of about 300 a year, the nation has seen that number fall by one-third since 2000.
Much of that shift can be attributed to advances in DNA testing and other technology, which have exposed shortcomings in the legal proceedings that put people on death row, say Mr. Dieter and others.
The decision awaiting Schwarzenegger is complex since Williams has aimed to both cast doubt on his conviction and persuade the governor that he has become a changed man behind bars.
"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.