Clemency and The Vanishing Point of Decision Making

For the most part, the decision of whether to grant a pardon or commutation rests on the discretion of the executive.1 It is a constitutional authority that leaves little recourse if the President or a governor chooses not to act or to do so parsimoniously.2 And the downward trend in the granting of clemency begs the question of whether this is due to some fault in the process or in the decider or some other aggregation of factors.3 And this in turn has challenged legal scholars and petitioners to speculate on whether there is any relief for a petrified constitutional remedy?

Advocating for a pardon is more art than science.4 But to the extent that petitions are unheard or undecided or denied based on some arbitrariness or obfuscation in the process, there might be grounds for legal action or legislative reform.5

Sometimes judges make what seem to be recommendations for clemency, but at most they are obiter dicta without any legal force.6 And courts generally shy away from addressing the propriety of the pardon power out of concern for separation of powers, preemption, justiciability, balance of powers, sovereignty, federalism, judicial restraint and immunity.7 But there is a slim line of authority that recognizes minimal due process and equal protection in the administration of clemency.8

Overall, a range of ideas have emerged from lawsuits and policy studies apropos compelling or at least encouraging the use of the pardon power. In the end, education about the vital role of clemency might be the best solution of all.9

This article gathers together some notable decisions and scholarship about clemency practices and the legal theories underlying a mandate for its application.


Burdick v. United States, 236 U.S. 79 (1915)
“It is to be borne in mind that the power of the President under the Constitution to grant pardons and the right of a witness must be kept in accommodation. Both have sanction in the Constitution, and it should, therefore, be the anxiety of the law to preserve both, — to leave to each its proper place. In this as in other conflicts between personal rights and the powers of government, technical — even nice — distinctions are proper to be regarded. Granting then that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it, as we have seen, and it, therefore, not becoming effective, his right under the Constitution to decline to testify remained to be asserted; and the reasons for his action were personal. It is true we have said (Brown v. Walker, 161 U.S. 591, 605) that the law regards only mere penal consequences and not “the personal disgrace or opprobrium attaching to the exposure” of crime, but certainly such consequence may influence the assertion or relinquishment of a right. This consideration is not out of place in the case at bar. If it be objected that the sensitiveness of Burdick was extreme because his refusal to answer was itself an implication of crime, we answer, not necessarily in fact, not at all in theory of law. It supposed only a possibility of a charge of crime and interposed protection against the charge, and, reaching beyond it, against furnishing what might be urged or used as evidence to support it.”

Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981)
“This case does not involve parole, and respondents’ argument wholly misconceives the nature of a decision by a state to commute the sentence of a convicted felon. The petition in each case is nothing more than an appeal for clemency. See Schick v. Reed, 419 U. S. 256, 260-266 (1974). In terms of the Due Process Clause, a Connecticut felon’s expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate’s expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope. Greenholtz, supra, at 11; see Leis v. Flynt, 439 U. S., at 443-444. A constitutional entitlement cannot “be created—as if by estoppel—merely because a wholly and expressly discretionary state privilege has been granted generously in the past.” Id., at 444, n. 5. No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency.”

District Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52 (2009)
“In identifying his potential liberty interest, Osborne first attempts to rely on the Governor’s constitutional authority to “grant pardons, commutations, and reprieves.” Alaska Const., Art. III, S 21. That claim can be readily disposed of. We have held that noncapital defendants do not have a liberty interest in traditional state executive clemency, to which no particular claimant is entitled as a matter of state law. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). Osborne therefore cannot challenge the constitutionality of any procedures available to vindicate an interest in state clemency.”

Ex Parte Garland, 71 U.S. 333 (1866)
“The pardon produced by the petitioner is a full pardon “for all offences by him committed, arising from participation, direct or implied, in the Rebellion,” and is subject to certain conditions which have been complied with. The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offence of treason, committed by his participation in the Rebellion. So far as that offence is concerned, he is thus placed beyond the reach of punishment of any kind. But to exclude him, by reason of that offence, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offence notwithstanding the pardon. If such exclusion can be effected by the exaction of an expurgatory oath covering the offence, the pardon may be avoided, and that accomplished indirectly which cannot be reached by direct legislation. It is not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency. From the petitioner, therefore, the oath required by the act of January 24th, 1865, could not be exacted, even if that act were not subject to any other objection than the one thus stated.”

Ex Parte United States, 242 U.S. 27 (1916)
“Indisputably under our constitutional system the right to try offences against the criminal laws and upon conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided, belongs to the executive department.”

Harbison v. Bell, 556 U.S. 180 (2009)
“Indeed, as the history of this case demonstrates, the work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application. Harbison’s federally appointed counsel developed extensive information about his life history and cognitive impairments that was not presented during his trial or appeals. She also litigated a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), based on police records that had been suppressed for 14 years. One Court of Appeals judge concluded that the nondisclosure of these records “undermine[d] confidence in Harbison’s guilty verdict” because the evidence contained therein could have supported a colorable defense that a third party murdered the victim and that Harbison’s codefendant falsely implicated him. 408 F.3d, at 840 (Clay, J., dissenting). Although the Court of Appeals concluded that Harbison’s Brady claim was procedurally defaulted, the information contained in the police records could be marshaled together with information about Harbison’s background in a clemency application to the Tennessee Board of Probation and Parole and the Governor.

Harbison’s case underscores why it is “entirely plausible that Congress did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.” Hain v. Mullin, 436 F.3d 1168 (C.A.10 2006) (en banc). In authorizing federally funded counsel to represent their state clients in clemency proceedings, Congress ensured that no prisoner would be put to death without meaningful access to the “`fail-safe'” of our justice system. Herrera, 506 U.S., at 415, 113 S.Ct. 853.”

Herrera v. Collins, 506 U.S. 390 (1993)
“Executive clemency has provided the “fail safe” in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence. In his classic work, Professor Edwin Borchard compiled 65 cases in which it was later determined that individuals had been wrongfully convicted of crimes. Clemency provided the relief mechanism in 47 of these cases; the remaining cases ended in judgments of acquittals after new trials. E. Borchard, Convicting the Innocent (1932). Recent authority confirms that over the past century clemency has been exercised frequently in capital cases in which demonstrations of “actual innocence” have been made. See M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282-356 (1992).”

Marbury v. Madison, 5 U.S. 137 (1803)
“At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia. . . .
Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. . . .
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.

It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. . . .”

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998)(O’Connor, J. concurring)
“A prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is constitutionally necessary to protect that interest in the context of Ohio’s clemency procedures. It is clear that “once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.” Ford v. Wainwright, 477 U. S. 399, 429 (1986) (O’Connor, J., concurring in result in part and dissenting in part). I do not, however, agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards. The Chief Justice’s reasoning rests on our decisions in Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), and Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979). In those cases, the Court found that an inmate seeking commutation of a life sentence or discretionary parole had no protected liberty interest in release from lawful confinement. When a person has been fairly convicted and sentenced, his liberty interest, in being free from such confinement, has been extinguished. But it is incorrect, as Justice Stevens’ dissent notes, to say that a prisoner has been deprived of all interest in his life before his execution. See post, at 291-292. Thus, although it is true that “pardon and commutation decisions have not traditionally been the business of courts,” Dumschat, supra, at 464, and that the decision whether to grant clemency is entrusted to the Governor under Ohio law, I believe that the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”


Anderson v. Davis, 279 F.3d 674 (9th Cir. 2002)
“Courts have uniformly rejected allegations that due process is violated by a governor who adopts a general policy of not granting clemency in capital cases. See In re Sapp, 118 F.3d 460, 465 (6th Cir.1997). However, on the assumption that there might be a ground in this matter for the denial of clemency — as suggested by Justice O’Connor in Woodard — that would offend the Constitution, we have scoured the record to see if there is any such problem in this case, and we find none. Anderson does not present us with any suggestion that race, religion, political affiliation, gender, nationality, etc. are involved in this case. He has not alleged that the Governor’s procedures are ‘infected by bribery, personal or political animosity, or the deliberate fabrication of false evidence.’ Woodard, 523 U.S. at 290-91, 118 S.Ct. 1244 (Stevens, J., concurring and dissenting). Nor does he allege that coin-flipping or another capricious decisionmaking process is present. Furthermore, Anderson does not claim he has been misled in any way by the Governor, or that he failed to receive adequate notice of the issues to be considered in his request for clemency. In this respect, Anderson’s case is easily distinguishable from the claims presented to this Court by way of mandamus in Wilson v. United States Dist. Court (Siripongs), 161 F.3d 1185 (9th Cir.1998).”

Bowens v. Quinn, 561 F.3d 671 (7th Cir. 2009)
“We do not even think that the Illinois statute creates a requirement of prompt, or indeed of any, action by the governor on a clemency petition. The statute merely describes steps in the sequence of procedures in clemency matters. There is first the petition, then consideration of it by the Prisoner Review Board, then “the Governor shall decide each application and communicate his decision to the Board which shall notify the petitioner,” and there are further steps after that. 730 ILCS 5/3-3-13. Unless and until the governor decides the application and communicates his decision to the Board, the further steps are pretermitted.

If this is wrong and the statute does require the governor to make a decision, still, it does not specify a time limit. It might seem that a “reasonable” time could be implied, as is done in contracts that do not specify a deadline for performance. E. Allan Farnsworth, Contracts S 3.28, p. 205 (4th ed.2004); Restatement (Second) of Contracts S 204, comment d (1981); Rose v. Mavrakis, 343 Ill.App.3d 1086, 278 Ill. Dec. 751, 799 N.E.2d 469 (2003); Meyer v. Marilyn Miglin, Inc., 273 Ill.App.3d 882, 210 Ill.Dec. 257, 652 N.E.2d 1233, 1239 (1995). But we have no idea what a “reasonable” time for deciding a clemency petition would be. It would depend on the number of petitions, which must vary from year to year (we have data only for 2005, when 713 clemency petitions were filed; the governor granted 1 and denied 31, and so 681 were left undecided), and on the other tasks besides reviewing recommendations for clemency forwarded to him by the Prisoner Review Board to which a governor must attend.

Executive clemency is a classic example of unreviewable executive discretion because it is one of the traditional royal prerogatives (along with receiving foreign ambassadors and commanding the armed forces) borrowed by republican governments for bestowal on the head of government. U.S. Const., art. II, S 2, cl. 1; Schick v. Reed, 419 U.S. 256, 260-66, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974); Ex parte Grossman, 267 U.S. 87, 108-10, 45 S.Ct. 332, 69 L.Ed. 527 (1925); John Harrison, “Pardon as Prerogative,” 13 Fed. Sentencing Rptr. 147 (2001) (“seeing the pardon power as a bit of the royal prerogative dropped into our generally law-bound constitutional system provides a perspective on the actual and possible functions of that power”). We therefore balk at the idea of federal judges’ setting timetables for action on clemency petitions by state governors.

And what sanction could a federal court impose for noncompliance with any “reasonable time” deadline that the court might set? Would it be to grant the pardon? If so, the governor’s office would be overwhelmed. Every felon in the state would apply for a pardon knowing that, with all applying, the governor’s office, overwhelmed, would be unable to process the applications within the deadline set by the court, and so they would be granted by default. Federal courts have run prisons, school systems, police and fire departments, and other state and local agencies found to have engaged in unconstitutional conduct. But for a federal court to run a governor’s pardon system would be a step too far. “

Link v. Luebbers, 830 F. Supp. 2d 729 (E.D. Mo. 2011)
“In this case, counsel argue that clemency counsel have a duty to ensure that the clemency process is both substantive and procedurally just. Though not controlling, the ABA has issued guidelines regarding clemency counsel’s duties. See American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Rev’d Feb. 2003, 31 Hofstra L. Rev. 913 (2003) (the “Guidelines”). See Wiggins v. Smith, 539 U.S. 510, 522, 524-25, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (ABA guidelines determine what is reasonable practice for counsel in criminal proceedings). The Guidelines state, “in addition to assembling the most persuasive possible record for the decisionmaker [sic], counsel must carefully examine the possibility of pressing legal claims asserting the right to a fuller and fairer process.” Guidelines at 937. With regard to this proposition, the Guidelines cite to Wilson v. U.S. Dist. Court for the Northern Dist. of California, 161 F.3d 1185 (9th Cir.1998), in which a death row inmate filed a S 1983 action alleging violations of due process in clemency proceedings.

As the court noted in Nixon, some minimal due process protections apply to state clemency proceedings. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998); Young v. Hayes, 218 F.3d 850, 853 (8th Cir.2000) (finding viable due process claim where inmate alleged that district attorney threatened to fire attorney under her supervision if she provided information to the governor in connection with the inmate’s clemency petition). This is a developing area of law, and the Court believes that Link’s due process challenge was non-frivolous, regardless of the fact that the case was dismissed for failure to state a claim. Moreover, the Guidelines recommend that clemency counsel be prepared to raise due process challenges in furtherance of clemency proceedings.

This does not fully answer the question of whether counsel may be compensated for pursuing the due process challenge, however. The S 1983 action must fall under one of the provisions of S 3599(e), which requires counsel to represent a petitioner in “all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” (Emphasis added). The relevant question is whether the S 1983 action constituted an “appropriate motion or procedure” or whether it was part of Link’s “proceedings for executive clemency.” The Court finds that in this instance the S 1983 due process challenge was an essential part of Link’s executive clemency proceedings. Having due process rights in state clemency proceedings would mean very little if a clemency petitioner could not seek to enforce those rights during the clemency process. And such a challenge could not effectively be made, in all practicality, without the assistance of federal counsel. As a result, the Court concludes that the work performed in Nixon is compensable under S 3599(e).”

Link v. Nixon, 2011 U.S. Dist. LEXIS 11910 (W.D. Mo. Feb. 7, 2011)
“Although some minimal due process protections apply to a State clemency proceeding, under Missouri law the decisions of whether to grant or deny clemency and whether to appoint a board of inquiry are left to the discretion of the governor. According to Plaintiff’s allegations, Governor Nixon’s views regarding clemency were made public while he was Attorney General. Subsequently, Missouri voters elected Nixon to the position of Governor, holding the constitutional power to make clemency determinations. It is not alleged that Defendants simply rolled a dice to determine whether to grant clemency or intentionally interfered with Link’s access to full clemency proceedings. Link’s theory that Governor Nixon is simply predisposed to reject his petition for clemency fails to state a claim for which relief may be granted. . . .

Plaintiff Link’s Complaint also claims that allowing Governor Nixon to deny clemency following his resistance to Plaintiff’s arguments in prior litigation “would be so fundamentally unfair that it would shock the conscience and violate Mr. Link’s right to due process of law.” [Doc. # 1 at P 39.] For the reasons stated above, the Court does not find that the clemency proceedings here shock the conscience. Moreover, Plaintiff cannot point to any fundamental right to have his clemency petition decided by a governor who arrived to that position without making public statements in support of the death penalty. Therefore, Plaintiff has also failed to state a substantive due process claim for which relief can be granted. . . .

Under the rubric of the Eighth Amendment, Plaintiff’s Complaint asserts the same argument that Governor Nixon is predisposed to deny him clemency. The Eighth Amendment provides the right to freedom from cruel and unusual punishment. For the reasons stated above, Plaintiff Link has failed to advance a theory as to why he is entitled to any greater clemency proceedings than have been afforded to him. Therefore, Plaintiff also fails to state a claim for which relief can be granted with respect to the Eighth Amendment.”

Luevano v. United States President of Am., 2008 U.S. Dist. LEXIS 2329 (D.D.C. Jan. 7, 2008)
“This Court is without the authority to direct the President of the United States to grant or even consider a pardon request, and also is without the authority to direct his staff to submit an application to him. See Yelvington v. Presidential Pardon and Parole Attorneys, 94 U.S. App. D.C. 2, 211 F.2d 642, 643-44 (D.C. Cir. 1954) (affirming denial of mandamus petition to compel attorneys to submit inmate’s petition for clemency to the President, noting that pardoning power “expressly vests in the President” which “should . . . be free of judicial control”). Nor does this Court have the power to compel an investigation into the allegedly “corruption conspiracy” about which plaintiff complains. See United States v. Nixon, 418 U.S. 683, 693, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (acknowledging that the Executive Branch “has exclusive authority and absolute discretion to decide whether to prosecute a case”); Powell v. Katzenbach, 123 U.S. App. D.C. 250, 359 F.2d 234, 234-35 (D.C. Cir. 1965) (per curiam), cert. denied, 384 U.S. 906, 86 S. Ct. 1341, 16 L. Ed. 2d 359 (1966) (“[T]he question of whether and when prosecution is to be instituted is within the discretion of the Attorney General. Mandamus will not lie to control the exercise of this discretion.”).”

PA Prison Soc. v. Cortes, 622 F.3d 215 (3d Cir. 2010)
“The Supreme Court has instructed that there are four exceptions to the sovereign’s executive clemency powers. First, a pardon cannot interfere with the vested property rights of third parties in violation of the Takings Clause. See U.S. Const. amend. V (“Nor shall private property be taken for public use, without just compensation.”); see also Knote v. United States, 95 U.S. 149, 154, 13 Ct.Cl. 517, 24 L.Ed. 442 (1877) (“Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force.”); Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 381, 18 L.Ed. 366 (1866) (“There is only this limitation to [the pardon power’s] operation: it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.”). Second, in Hart v. United States, 118 U.S. 62, 6 S.Ct. 961, 30 L.Ed. 96 (1886), the Court instructed that a pardon cannot require the payment of funds from the Treasury in violation of the Spending Clause. Id. at 67, 6 S.Ct. 961; see also Knote, 95 U.S. at 154 (“The power of the pardon . . . cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power.”). Third, a pardon cannot require a prisoner to forfeit his constitutional rights unreasonably. See Schick, 419 U.S. at 266, 95 S.Ct. 379 (noting that the pardon power “permits the attachment of any conditions which does not otherwise offend the Constitution”).

The Supreme Court has also instructed that the procedures by which a pardon is granted must comply with the Due Process Clause of the Fifth Amendment. Ohio Adult Parole Auth., 523 U.S. at 276, 118 S.Ct. 1244. “The Due Process Clause is not violated, [however], where . . . the procedures in question do no more than confirm that the clemency and pardon power is committed, as is our tradition, to the authority of the executive.” Id.”

Turner v. Epps, 460 Fed. Appx. 322 (5th Cir. Feb. 8, 2012)
“A second issue is whether Turner’s right of access permits him to seek expert assistance in “laying a foundation for a request for clemency.” Turner claims that his lack of access to experts threatens his “due process right of access to the clemency system of the State of Mississippi.” It is clear that some minimal due process safeguards do apply to clemency procedures. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89 (1998) (O’Connor, J., concurring) (plurality opinion). But these requirements really are minimal, as Justice O’Connor explained: “Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Id. at 289 (emphasis added). Turner has not made any argument that the SOP or the Mississippi clemency procedure falls below this threshold. He “d[oes] not provide evidence that he would be denied access to the [clemency] process or evidence that the decision will be made arbitrarily.” Roach v. Quarterman, 220 F. App’x 270, 275 (5th Cir. 2007); see also Faulder v. Tex. Bd. of Pardons & Paroles, 178 F.3d 343, 344-45 (5th Cir. 1999). As Turner’s lack of access to experts does not bar him from seeking clemency, he has not properly stated a due process violation.”

Yelvington v. Presidential Pardon & Parole Attorneys, 211 F. 2d 642 (D.C. Cir. 1954)
“It is doubtless true that the President intended that pardon applications should reach him in every case where the requisites of the regulations had been met. But this intention is not necessarily one which the courts should attempt to enforce. Failure of a subordinate to obey his superior’s directions in matters of this sort is ordinarily a matter of internal supervision and discipline. Seldom, if ever, would a court serve a useful purpose by issuing mandamus to a subordinate official to report to a superior or send a particular document to him. Cf. Williams v. Fanning, 1947, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95. Other and more practical remedies are usually available.
This reasoning is particularly applicable in the present context. The pardoning power is one which the Constitution expressly vests in the President. Const., Art. II, S 2, cl. 1. As the Supreme Court has said:
‘* * * This power of the President is not subject to legislative control. * * * The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.’ Ex parte Garland, 1866, 4 Wall. 333, 71 U.S. 333 at 380, 18 L.Ed. 366.
It should, we think, be free of judicial control, even to the limited extent here proposed. Those who are the President’s assistants in this field should not be compelled by court order to submit to him documents in behalf of a particular suitor for clemency, when their own interpretation of his instructions leads them to refrain from so doing. If they have erred, he may correct them. But we do not think we should attempt to do so.”

Young v. Hayes, 218 F.3d 850 (8th Cir. 2000)
“Certainly the discretion of a governor to grant or deny clemency is unlimited in any ordinary circumstances. No claim is advanced here that the petitioner has a “liberty interest” in the grant of clemency or the right to any particular outcome when he seeks it. The allegation is quite different. Apparently Missouri regularly receives evidence from any and all sources in clemency matters, and the Governor is not restricted as to the nature of the considerations he may entertain or the evidence he may receive. If clemency is sought on the ground of ineffective assistance of counsel, racial discrimination in the trial process, or other procedural grounds, the Governor may grant or deny it as he chooses. The claim here is that the State, acting through the Circuit Attorney of the City of St. Louis, has deliberately interfered with the efforts of petitioner to present evidence to the Governor. It is uncontested that the interference did in fact occur at one time. As we have tried to explain above, the question whether the effects of the interference still persist is one on which reasonable people could differ, and therefore for a trier of fact. . . .

The instant complaint alleges that the defendant Hayes, with the purpose of inducing Ms. Geiler to withhold evidence, threatened her with loss of her job. Cf. 18 U.S.C. S 1505 (a comparable federal statute). Such conduct on the part of a state official is fundamentally unfair. It unconscionably interferes with a process that the State itself has created. The Constitution of the United States does not require that a state have a clemency procedure, but, in our view, it does require that, if such a procedure is created, the state’s own officials refrain from frustrating it by threatening the job of a witness.”


In re Hooker, 87 So.3d 401 (Miss. Sup. Ct. 2012)
“At the outset, we wish to state that this case is not about whether the governor is above the law. He clearly is not, and any implication in the dissents, or elsewhere, that he is—or that a majority of this Court believes he is—is incorrect. This case is about whether this Supreme Court has the right, authority, and power to declare itself superior to, and above, both the other two branches of government in all matters of constitutional compliance. While this Court clearly has the constitutional duty to interpret the content of laws passed by the Legislature and executive orders issued by the governor, we decline—as have so many other courts before us—to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties to produce laws and executive orders, unless there is alleged a justiciable violation of a personal right. . . .

No judicial duty is more central to the proper operation of our system of government than is our duty to decide this issue correctly. In carrying out this duty, as we must, and respecting the clear constitutional provisions that separate our powers from the governor’s powers, we are compelled to hold that—in each of the cases before us—it fell to the governor alone to decide whether the Constitution’s publication requirement was met.”

Matter of Boyd v. Pataki, 52 A.D.3d 1128 (3rd Dep’t 2008)
“Petitioner, currently serving an aggregate term of 25 to 50 years for robbery in the first degree, applied for executive clemency in November 2005 seeking commutation of his sentence. In conjunction therewith, petitioner mistakenly was provided with a copy of the clemency summary report prepared by the superintendent of the facility at which he was incarcerated. Upon reviewing that report, petitioner allegedly discovered certain inaccuracies. When his efforts to correct the asserted errors proved unsuccessful and his bid for clemency was denied, petitioner commenced this proceeding pursuant to CPLR article 78 seeking, among other things, to vacate the denial of his request for executive clemency and an order directing the preparation of a corrected clemency summary report. Supreme Court dismissed the petition, and this appeal by petitioner ensued.
We affirm. ‘[T]he power to grant reprieves, commutations and pardons is conferred upon the Governor to grant upon such conditions and with such restrictions and limitations, as he may think proper’ (Sturnialo v Carey, 90 Misc 2d 275, 277, 394 NYS2d 137 [1977] [internal quotation marks and citations omitted]), and the exercise of such discretion and power, ‘unless illegal or impossible conditions are attached, is not subject to judicial review’ (Vanilla v Moran, 272 App Div 859, 859, 70 NYS2d 631 [1947], affd 298 NY 796, 83 NE2d 696 [1949]). Inasmuch as petitioner failed to allege, much less demonstrate, that such conditions are present here, the denial of his application for clemency is not reviewable and, as such, the petition was properly dismissed. Moreover, the Attorney General advises that during the pendency of this appeal, petitioner again applied for executive clemency and a new clemency summary report was generated. Thus, to the extent that petitioner challenges the contents of the initial clemency summary report, even if he had properly exhausted his administrative remedies (see 7 NYCRR 5.50-5.52), his claim has been rendered moot.”

Matter of Johnson v. Evans, 76 A.D.3d 1164 (3rd Dep’t 2010)
“Petitioner was convicted in 1988 and 1989 of the crimes of robbery in the first degree, kidnapping in the second degree, attempted rape in the first degree and two counts of bail jumping in the first degree, and is currently incarcerated. In September 2009, he wrote a letter to respondent Chair of the Division of Parole requesting that his application for “executive clemency” be forwarded to the Governor of the State of New York. When his request was denied, petitioner commenced this CPLR article 78 proceeding in the nature of mandamus to compel. Respondents moved to dismiss the petition for failure to state a cause of action, and Supreme Court granted the motion. This appeal ensued.
The Attorney General has advised this Court that, after this CPLR article 78 proceeding was commenced, the Director of the Executive Clemency Bureau of the Division of Parole acknowledged that he misunderstood the nature of petitioner’s application, which is actually a request for a pardon, and that he has since forwarded the application to the Governor for consideration. Given that this was the very relief requested in the verified petition and petitioner has been afforded all the relief to which he is entitled, the appeal must be dismissed as moot (see e.g. Matter of Rivera v New York State Div. of Parole, 23 AD3d 863, 864 [2005], lv denied 6 NY3d 709 [2006]). Although petitioner contends that he also submitted a May 2009 application for executive clemency that has not been considered by the Governor, the Executive Clemency Bureau has no record of such request. As petitioner has not alleged that this application has been denied, his argument that the matter is not moot is unpersausive. Ordered that the appeal is dismissed, as moot, without costs.”

People v. White, 309 N.Y. 636 (1956)
“The defendant’s version of the alleged misrepresentation of the assistant district attorney is contradicted by the clear showing of the lack of an opportunity for reliance, indeed the impossibility of reliance, in view of the personal knowledge of the defendant of his criminal career and of the warnings of the court. Therefore, there is no dispute of fact as to reliance upon the alleged misrepresentation of the assistant district attorney. The interpretation of the statement of the Judge at General Sessions as a ‘guaranty’ of executive clemency is a mere conclusion, legally insufficient to warrant a hearing, as it raises no issue of fact but only represents an opinion of the defendant. A recommendation cannot be construed as a promise or guarantee or truly characterized as such. The language used by the court does not permit even the inference of a promise.”

People ex rel. Sabatino v. Jennings, 221 A.D. 418 (N.Y. App. Div. 1927), aff’d, 246 N.Y. 624, 246 N.Y. (N.Y.S.) 624 (1927)
“The exercise by the Governor of his discretion to grant a conditional release is undoubtedly a prerogative with which the courts will not interfere. (People ex rel. Brackett v. Kaiser, 209 App. Div. 722.) But the power that lies in the Governor was not intended as a limitation on the right of discharge. It is one of extension, of mercy. By its exercise one in legal confinement may have his term shortened. Such exercise cannot be utilized to extend imprisonment beyond the time of discharge or to retain under its guise “a jurisdiction that has ended.”

In the instant case the relator (evidently unknown to the Governor) had already been by the court ordered discharged. Therefore the certificate of the Governor was without effect. This is not relator’s first application to the court for relief from his unwarranted imprisonment. (People ex rel. Sabatino v. Lawes, 217 App. Div. 779; People ex rel. Sabatino v. Parole Board, 219 id. 751.) Hitherto the court seems to have considered only the authority of the Governor to grant him either a conditional or an unconditional discharge. The effect of Mr. Justice Angell’s prior order of absolute discharge has not apparently had attention. However this may be, we have the authority to review the whole matter and give force, belated though it is, to that order.”

Sturnialo v. Carey, 90 Misc. 2d 275 (N.Y. Sup. Ct. 1977)
“Several requests for clemency consideration were addressed to the Governor on behalf of the petitioner. Acting on behalf of the Governor, the Executive Clemency Bureau has taken the position that the petitioner has not met the eligibility requirements for executive clemency consideration since she has not yet served one half of her minimum sentence. This position is predicated upon certain guidelines adopted by the Governor for review of clemency applications. The guidelines provide, in part, as follows: ‘Absent an exceptional and compelling circumstance, a commutation of a sentence of imprisonment will be considered only if: (1) the inmate’s term or minimum period of imprisonment is more than one year; (2) he had served at least one-half of his minimum period of imprisonment; and (3) he is not eligible for release on parole in the discretion of the Board of Parole.’
Petitioner seeks to compel a consideration of her application upon a showing of ‘exceptional and compelling’ circumstances. She notes that commutations have been granted in various instances to persons who have served less than one half their term. She claims that the Governor, in failing to give consideration to her application, has not followed the clemency guidelines which he has established. . . .
However, the power to grant reprieves, commutations and pardons is conferred upon the Governor to grant ‘upon such conditions and with such restrictions and limitations, as he may think proper’. (NY Const, art IV, S 4; Executive Law, S 15.) ‘The exercise of the Governor’s discretion and power to grant commutations, unless illegal or impossible conditions are attached, is not subject to judicial review, or an examination to determine whether he acted under a statute or otherwise.’ (Vanilla v Moran, 272 App Div 859, affd 298 NY 796.)
The adoption of the guidelines by the Governor is well within his constitutional power. No illegal or impossible conditions are specified in the guidelines. Obviously, it has been determined by the Governor, through the Executive Clemency Bureau, that no exceptional and compelling circumstances have been demonstrated by petitioner so as to justify deviation from the guideline requirement that one half the minimum sentence must be served before clemency will be considered. The fact that commutation has been granted in other cases where exceptional and compelling circumstances have been found is of no assistance to petitioner, since commutation is a matter of grace and not of right. (Roberts v State of New York, 160 NY 217.)
Moreover, it is well settled that mandamus will issue only to compel performance of an official duty clearly imposed by law and is limited to the enforcement of clear legal rights. (23 Carmody-Wait 2d, NY Prac,SS 145:112, 145:113.) Petitioner has failed to demonstrate, as a matter of law, such a clear right and the relief which she seeks by way of mandamus must be denied.”


Compelling Mercy: Judicial Review and the Clemency Power, 9 U. St. Thomas L.J. 698 (2012)
“Today, the need for reform of the federal clemency process is even more apparent. The miserly clemency practices of Presidents George W. Bush and Barack Obama make clemency advocates long for the relative generosity of Presidents Carter and Reagan. There is also a compelling case to be made that the Justice Department’s advisory function has been captured–and ultimately undermined–by federal prosecutors who are primarily interested in ensuring that sentences be carried out, and rarely mitigated. And suggestions that racial discrimination could infect the clemency process are no longer hypothetical. A U.S. pardon attorney has left his post and retired after making racially-biased remarks about a clemency applicant. Even more troubling is a study of presidential pardons demonstrating that in recent years racial disparity mars the clemency process, with whites being more than four times more likely to receive pardons than minorities. At the state level, concerns about whether clemency procedures comport with due process of law are pervasive.

Given such ongoing problems, it is time to revisit whether the courts should be asked to intervene in clemency matters. Judges, both state and federal, are understandably reluctant to interfere with the decisions of other branches about whether to grant or deny clemency. There are also serious questions about whether judicial review would, in the end, improve the quality of clemency decision making. In this essay, I [Daniel T. Kobil] examine the arguments commonly advanced against judicial review of clemency issues, and conclude that they are unpersuasive. I also explore the circumstances under which the courts should intervene to invalidate grants of clemency or declare specific procedures unconstitutional. Although there are legitimate concerns that judicial review could contribute to further atrophy of the power, I believe that where due process and equal protection guarantees are being eroded by arbitrary or discriminatory clemency practices, or fundamental rights are infringed by unconstitutional conditions, there is a role for the courts to play. However, there is little that the courts can do to promote more robust exercise of the clemency power by governors or presidents who are reluctant to use their authority.”

Conditioning the President’s Conditional Pardon Power, 89 Calif. L. Rev. 1665 (2001)
“[T]his Article argues that exercise of the pardon power generally should remain vested in the president’s discretion, checked only by the political process. Even though coercion is inherent in conditional offers, we should trust offenders to choose between complying with the conditions and staying in prison longer because they generally benefit from that choice. And, in light of the president’s role under the pardon clause in making judgments about optimal punishment, presidents can alter the sentencing framework set by Congress. Oversight by Congress, the press, and subsequent presidents tempers presidential overreaching. This Article argues, however, that judges can play a critical role in helping check abuse of the conditional pardon power in two contexts. First, judges should negate a presidential condition in the rare case when the condition shocks society’s conscience, such as requiring a prisoner to donate a kidney. Second, offenders should also be entitled to challenge any condition that violates constitutional restraints on the president’s authority such as a First Amendment ban on providing support for particular religious expression. In short, although there should be no review of the process by which presidents reach the decision to pardon, the reasons for the decision, or the appropriateness of the condition selected, limited review of conditions that shock the conscience or violate constitutional restraints on presidential authority is warranted. “

Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency, 60 Duke L.J. 131 (2010)
In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines. During this period, many judges were forced to impose sentences they viewed as unjust. Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory. Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Booker does not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is insufficient because it is inflexible, time consuming, and generally nonretroactive. Executive clemency appears more promising due to a flexible and broad nature that allows the president and state governors to pardon or commute sentences at will. But executives have become unwilling to use their clemency power, making it an inadequate remedy. This Note proposes a solution that overcomes the limitations of the current system: judicial recommendation of executive clemency. This solution produces three benefits. First, it provides judges with a discretionary tool to reduce disproportionate mandatory sentences. Second, it revitalizes the exercise of clemency by giving it additional legitimacy. Finally, it refocuses clemency grants on the defendant and the facts of the case rather than on political influences. This Note provides eight illustrative criteria for judicial recommendation of executive clemency that, together, combine the characteristics of three modern cases in which the sentencing judges recommended clemency. This Note seeks to explain how and why each criterion might be important, taking into consideration the goals of judicial discretion, executive clemency, and the criminal justice system overall.

Limits of the Clemency Power: On Pardons, Retributivists, and the United States Constitution, 41 Brandeis L.J. 85 (2002)
“This article discusses the President’s pardon power, examining its modest constitutional limitations and different theories about whether and when its use should be limited. Included are discussions of whether the Due Process and Equal Protections Clauses provide any protection for would-be pardonees as well as whether a pardon challenge would even be justiciable. The Article concludes that limiting the pardon power through constitutional amendment would be neither necessary nor wise. Potential abuses are either already subject to sanction or sufficiently unlikely to occur that the costs implicated in framing and passing an amendment would more than outweigh any benefits likely to be accrued through such an amendment.”

Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89 Va. L. Rev. 239 (2003)
“Clemency is an extrajudicial measure intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant characteristics, political factors, and clemency’s structure on clemency decisions. The results suggest that although a defendant’s race and ethnicity did not influence clemency, gender did play a role, as women were far more likely than their male counterparts to receive clemency. Analyses of political and structural factors point in different directions. Political factors such as the timing of gubernatorial and presidential elections and a governor’s lame-duck status did not systematically influence clemency. However, how states structure clemency authority did make a difference. Clemency grants were more likely in states that vest authority in administrative boards than in states that vest authority in the governor. Regionality and time were also important as clemency grants were less likely in southern states and declined after 1984. Overall, these mixed results contribute to a critique that clemency decisions are arbitrary and inconsistent. Thus, important questions regarding fairness that plague earlier aspects of the death penalty process persist to its final stage.”

Presidential Pardons and Immigration Law, 6 Stan. J. C.R. & C.L. 253 (2010)
“The existing academic literature has not seriously challenged the validity of this conventional view, even though it has no basis in the Supreme Court’s Pardon Clause jurisprudence, which establishes that the President’s exercise of the clemency power is not limited by the generally applicable terms of the existing statutory framework, much less by deliberate attempts at legislative restriction. Moreover, a presidential pardon does not merely relieve the grantee from punishment in the technical constitutional sense, but also removes the collateral disabilities imposed by reason of the commission or conviction of the pardoned offense, including those arising under the immigration laws. Accordingly, a presidential pardon defeats the use of any federal offense as a ground of removal, notwithstanding the contrary terms of the INA’s pardon waiver provision. Finally, because the existing waiver statute subjects federal and state pardon grantees to disparate treatment for immigration purposes, I [Samuel T. Morison] conclude that the courts should reconsider the equal protection implications of the current pardon waiver regime. “

Some Reflections on the President’s Pardon Power, 31 Cap. U. L. Rev. 143 (2003)
“Part I of this Article addresses the limitations on the presidential pardon power, concluding that the power is plenary and that it can be exercised for a variety of reasons so long as the power is being exercised to substitute a less severe punishment for a greater one. Part II suggests that the equal protection and due process guarantees of the Constitution provide very modest limitations on the pardon power. The Article concludes that while there are very few limitations on the President’s power to pardon, the costs of passing a constitutional amendment to impose more limitations would far exceed the benefits thereby gained.”

Rethinking the Timing of Capital Clemency, SSRN (2013)
“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 was concluded. 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. 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 placing clemency at 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.”

Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 Geo. Wash. Int’l L. Rev. 521 (2003)
“As I [Vicki C. Jackson] suggest below in Part I, federal sovereign immunity was a doctrine of limited effect in the early years of this republic and allowed for a number of remedies for governmental wrongdoing. Moreover, the constitutional provenance of federal ‘sovereign immunity’ is obscure, and was a matter of genuine uncertainty in early years. Over time the doctrine developed, drawing support from some aspects of constitutional architecture as well as from unreasoning and mistaken extensions of other versions of ‘sovereign immunity.’ Among the strands of constitutional structure behind federal ‘sovereign immunity’ are Congress’ powers over appropriations and the jurisdiction of the federal courts, powers that do not necessarily require but may help explain the early attraction of sovereign immunity as a doctrine.

As described in Part II, the ‘sovereign immunity’ doctrine has been dynamic, not static, as judges make choices about how broadly or narrowly to characterize its reach in response to legislation by Congress. In the inter-branch dynamic, both Congress and the Court have refrained at critical junctures from pressing constitutional limits, a restraint that has created an arguably beneficial ambiguity about the relationship of the judicial power to the legislative power in resolving claims against the government. Yet given the adverse effects of sovereign immunity on courts’ capacities to provide individual justice, it is past time for that dynamic to move back towards more restrictive understandings of the doctrine’s scope.

In Part III, I consider federal sovereign immunity’s relation to aspects of the idea of judicial independence embodied in Article III of the United States Constitution. Doctrines that article III courts will not enter ineffective or advisory judgments, nor judgments subject to legislative or executive revision or direction, coalesce in cases involving claims against the government, in ways that suggest that sovereign immunity may have been thought to preserve an aura of judicial independence. In light of the competing constitutional norms at stake and the well-established independence of the federal courts today, I end by urging re-interpretation of federal sovereign immunity doctrines so as to close rather than widen remedial gaps in the law.”


Changes Are Long Overdue for Texas’ Clemency Process Willingham Case Highlights Need for System Reform, Houston Chronicle, Oct. 16, 2013
“The state of Texas has acted admirably in the creation of the Forensic Science Commission, which has critiqued the fire science in the case; and the State Fire Marshal’s Office has, in conjunction with the Innocence Project of Texas, implemented a review of past arson cases where convictions may have been based on similarly unreliable evidence. Improvements also have been made in the judicial system with the passage of the Michael Morton Act, new requirements for DNA testing in death penalty prosecutions and the creation of a new procedure to consider scientific evidence that contradicts that which led to a conviction.
But the clemency process that failed to discover Willingham’s innocence in 2004 remains essentially unchanged. A recent study by a committee of the American Bar Association found that the Board of Pardons and Paroles’ consideration of capital cases is woefully inadequate – Texas does not meet any of the eleven minimum guidelines for an adequate process. This is a gaping hole in the safety net against wrongful execution.”

Kentucky Alone in Lack of Formal Clemency Procedure, WUKY, July 6, 2013
“The power of kings to spare a condemned person’s life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions. A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight – including in some cases having to explain a decision to legislators.”

Presidential Pardons: Shades of Mercy, ProPublica, 2011-2012 (series)
“White criminals seeking presidential pardons are nearly four times as likely to succeed as people of color, a examination has found.”

Quinn Tackles Clemency Backlog, State Journal-Register, Oct. 16, 2013
“Today, we commend him for correcting a longstanding wrong that fell to him – eliminating a towering backlog of clemency petitions left behind by Blagojevich, a governor who, for reasons unknown, simply was not interested in reviewing and acting on such requests from the people of Illinois. . . .
Acting on clemency cases takes time because of the review process involved. But Quinn rightly recognized the injustice of Illinois having such an enormous backlog of petitions on hold, and he made it a priority for himself and his administration.
“He views this as an important responsibility of the office,” his spokeswoman, Brooke Anderson, said Monday in an email. “The past mistakes of now law-abiding citizens who have paid their debt to society should not automatically serve as a lifetime barrier to employment.””

Sweeping Presidential Power to Help Prisoners That Holder Didn’t Mention, ProPublica, Aug. 14, 2013
“This week, Attorney General Eric Holder spoke out against the impacts of “draconian” sentences for nonviolent drug offenders. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” said Holder. But in unveiling the new “smart on crime” initiative, Holder skipped mention of the sweeping power the president has to shorten or forgive a federal prisoner’s sentence.”


Judicial Investigation of Pardon by Governor, 65 A.L.R. 1471
“I. Right to question power of governor; II. Right as affected by fraud on governor; III. Right to question motives or control discretion of governor.”


1 See generally Maggie Clark, Governors Balance Pardons With Politics, Stateline (Pew), Feb. 8, 2013; Kathleen “Cookie” Ridolfi and Seth Gordon, Gubernatorial. Clemency. Powers. Justice or Mercy?, Crim. Just., Fall 2009, at 26.

2 See, e.g., Ron Fournier, Will Obama Pardon This Man (and Many Like Him) or Just a Turkey?, Nat’l J., Nov. 25, 2013; Judging From His Clemency Record, Obama Likes Turkeys 10 Times as Much as People, Forbes Mag., Nov. 27, 2013; Sunday Dialogue: Using the Power to Pardon, NY Times, Nov. 30, 2013; Charlie Savage, Sentences of 8 Are Commuted in Crack Cases, NY Times, Dec. 20, 2013, at A1; Debra J. Saunders, After Long Struggle, Justice Finally Prevails, Townhall Mag., Dec. 22, 2013; A Small Step Toward More Mercy, N.Y. Times, Dec. 22, 2013; Walter Olson, Obama’s Unpardonable Record on Issuing Pardons, Herald Online, Dec. 23, 2013; Trapped Behind Bars for Too Long, Wash. Post, Dec. 23, 2013.

3 See generally P.S. Ruckman, Jr. Pardon Power Blog; Douglas A. Berman, “Clemency and Pardons” in Sent. L. & Pol’y Blog.

4 See, e.g., Jacob Gershman, Path to a Pardon: How a D.C. Lawyer Won Clemency for a Lifer, Wall St. J. Blog, Dec. 20, 2013 (Attorney Tim Means, who has effectively lobbied for clemency on behalf of his clients, highlighted three points for successful petitions: (1) “You have to have a case where a layman looks at it and sees injustice and sees that it makes no sense as a matter of fairness and public policy.” (2) “[T]apping their network of Capitol Hill contacts and asking them to get the White House’s attention.” (3) “Mr. Means also raised awareness about his client in written testimony to a congressional hearing on federal mandatory minimum sentences in September. And it helped that the American Civil Liberties Union highlighted her case in a critical report on mandatory minimum sentencing laws last month.”). See generally Ken Strutin, Clemency: Justice to the Nth Degree, N.Y.L.J., Apr. 20, 2012, at 4 (“Clemency policies should be appropriate to the diverse grounds upon which such relief might be granted, i.e., for those wrongly convicted, wrongly sentenced, or seeking fundamental fairness and humane treatment.”).

5 See, e.g., Kentucky Alone in Lack of Formal Clemency Procedure, WUKY, July 6, 2013 (“[P.S.] Ruckman [political science professor at Rock Valley College in Rockford, Ill.] found the challenge to the clemency process [in Kentucky] novel. While there have been suits in federal court and in Kentucky contesting the scope of the powers, those have generally reaffirmed the ability of governors and presidents to pardon as they choose. Ruckman noted few suits have attacked the method by which clemency is granted.”).

6 See Ken Strutin, Clemency: A Remedy in Need of Revival, N.Y.L.J., Aug. 21, 2013, at 4 (“For instance, in Smith v. Mahoney, 596 F.3d 1133, 1154 (9th Cir. 2010), the U.S. Court of Appeals for the Ninth Circuit reviewed and then denied the legal claims of Ronald Smith, convicted of murder and sentenced to death in Montana. But in the final paragraph of the majority opinion, they made this recommendation: “By all accounts, Smith has reformed his life. He has developed strong relationships with various members of his family and has taken advantage of the educational opportunities offered by the prison that houses him. He has expressed deep regret for his deplorable actions. However, consideration of these issues is beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch.””); Ken Strutin, Forensic Clemency Using Science to Bend the Arc of Justice, N.Y.L.J., Sept. 25, 2012, at 5 (“In Cavazos v. Smith, 132 S.Ct. 2 (2011), a California woman convicted in her grandchild’s death, based on hotly debated shaken baby evidence, lost her appeal before the U.S. Supreme Court. Resolving the scientific debate against her, the justices felt compelled to acknowledge the limits of their power: “It is said that Smith, who already has served years in prison, has been punished enough, and that she poses no danger to society. These or other considerations perhaps would be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice is tempered by mercy. It is not clear to the Court whether this process has been invoked, or, if so, what its course has been. It is not for the Judicial Branch to determine the standards for this discretion. If the clemency power is exercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.” Five months later, Governor Jerry Brown agreed to shorten her sentence.”).

7 Compare In re Hooker, 87 So.3d 401 (Miss. Sup. Ct. 2012)(“At the outset, we wish to state that this case is not about whether the governor is above the law. He clearly is not, and any implication in the dissents, or elsewhere, that he is—or that a majority of this Court believes he is—is incorrect. This case is about whether this Supreme Court has the right, authority, and power to declare itself superior to, and above, both the other two branches of government in all matters of constitutional compliance. While this Court clearly has the constitutional duty to interpret the content of laws passed by the Legislature and executive orders issued by the governor, we decline—as have so many other courts before us—to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties to produce laws and executive orders, unless there is alleged a justiciable violation of a personal right.” Id. at 402.) with Tony Galli, Governor Suggests Pardon-Seeking Veteran Drop Hopes of Police Career, WKOW, Dec. 19, 2013(“[Wisconsin Governor Scott]Walker acknowledged having the constitutional authority to issue pardons, but said resolving criminal matters should remain in the criminal justice system’s domain. Walker has issued no pardons since taking office in 2011, with more than two thousand pardon requests pending. Walker said singling out [Marine Corps combat veteran Eric] Pizer’s case for consideration is ill-advised. “If you pick one, there’s thousands of other examples out there that people that may not have the media or other outlets behind them, who would be in an equal position, who probably have a compelling case to be made that we don’t yet know about,” Walker said.”).

8 See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998)(O’Connor, J. concurring: “Thus, although it is true that “pardon and commutation decisions have not traditionally been the business of courts,” Dumschat, supra, at 464, and that the decision whether to grant clemency is entrusted to the Governor under Ohio law, I believe that the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Id. at 289).

9 See, e.g., Brian Witte, Ehrlich, Catholic University, Form Legal Clinic, Boston Globe, Aug. 5, 2013 (“Former Maryland Gov. Robert Ehrlich has teamed up with the Catholic University of America’s Columbus School of Law to open a clinic this semester on clemency matters for people with criminal convictions, and the initiative will include a workshop for newly elected governors and their staff.”).

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