Rethinking the Timing of Capital Clemency

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals-years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm the victims' families by delaying closure for years. And reserving clemency determinations for the very end of the process creates an information cascade that makes it harder for governors to grant clemency in meritorious cases. This Article therefore argues for a threshold clemency determination in capital cases at the conclusion of direct review, before any state or federal habeas litigation has begun.I am doing what a governor has to do . . . . I am taking a last , long look at it.- Governor Buddy Roemer1IntroductionIn death-penalty cases, clemency is typically the last stage of the process. While governors have occasionally used their commutation powers to empty death row, blanket commutations are rare.2 In the ordinary case, commuta- tion comes only days or hours before execution.3 Sometimes the inmate has already ordered his final meal when the governor steps forward to reduce the sentence from death to life imprisonment.4There is a plausible argument for leaving clemency until the end of the process. In order to look holistically at a case, a governor or pardon board5 must have all the information to make an informed decision. And important information may come from the years of appeals and postconviction litiga- tion. For instance, it may only be after years of habeas corpus proceedings that governors would learn how terribly an inmate's lawyer performed or about new DNA evidence suggesting his innocence.6 Therefore, the conven- tional wisdom is that governors and pardon boards should decide whether to commute a death sentence only at the very end of a case.This Article challenges that conventional wisdom and advocates for a threshold clemency determination much earlier in the criminal justice pro- cess. Based on a review of every capital clemency decision in the last forty years,7 I suggest that the governor or pardon board should make a clemency determination immediately after the conclusion of the direct appeals process but before any state or federal habeas corpus petitions are filed.8 If governors or pardon boards decline to grant clemency at the end of the direct appeals process, they should retain the option to revisit that decision at the conclu- sion of the state and federal habeas corpus process. Put simply, clemency should still be last, but it should also be much earlier in the criminal justice process. To put the timing in perspective, the average time from conviction to execution is almost fifteen years.9 Direct appeals typically take a few years,10 with the habeas process covering the largest portion of the time.11 The threshold clemency determination should therefore be made relatively early in the capital punishment process. No legal obstacle stands in the way of considering clemency at the end of direct review.There are three reasons supporting the unorthodox proposal to consider clemency much earlier. First, when governors and pardon boards have com- muted death sentences over the last few decades, they have usually based their decisions on information that was known before the habeas corpus process even began.12 There have been sixty-six commutations for particu- larized reasons related to the inmate's case since the Supreme Court rein- stated capital punishment in 1976.13 To determine why governors or pardon boards commuted the death sentences, I reviewed news reports, direct ap- peals, and habeas corpus decisions, and I spoke with some of the attorneys involved in the cases. …