The Demise of Capital Clemency

Abstract

Over the last four decades numerous opponents of capital punishment have criticized the institution of executive clemency. Their principal complaint has been that, with a few isolated exceptions, far too many chief executives have granted condemned prisoners clemency far too infrequently. This is an unfortunate development, critics argue, one due entirely to the politicization of criminal justice, particularly capital punishment. This Article maintains that these criticisms are unfounded or overstated. It concludes that a governor should not merely grant clemency, but also issue a pardon to any offender who proves to be innocent of his crime, but notes that the instances in which that scenario might occur are few and far between. The Article also maintains that, given the numerous opportunities for the jury and state courts to spare those offenders, there is far less need today for a governor to second-guess the unanimous view of the local community and state judiciary that a death sentence is the appropriate punishment. Finally, the Article notes that critics do not address the horrific facts of some capital cases — facts that can signify that death is the appropriate penalty.