Tuesday, 6 May 2014

The Controversy of Clemency and Innocence in America

by Sarah Lucy Cooper, Barrister and Senior Lecturer in Law, BCU Law School

IN FEBRUARY 2014 I was invited to present at the Academy of Criminal Justice Sciences Annual Conference in Philadelphia. The theme of the conference was “Perceptions of Crime and Justice,” with hundreds of scholars and practitioners, from across the world’s criminal justice systems, contributing the fruits of their research and field experience on a variety of panels. Philadelphia – the historical heart of the United States’ Constitution and Independence – was the perfect venue for a conference that naturally centred on themes of justice (picture opposite, Independence Hal, Philadelphia). I took the opportunity to share research Daniel Gough and I have conducted concerning the relationship between the American clemency system and innocence claims.

Clemency has been embedded in the American criminal justice system since the United States Constitution was drafted. Justified under a mixture of retributive, redemptive and utilitarian principles, “clemency” covers a variety of executive mechanisms an executive can use to relieve offenders, including pardons, commutation of sentences, reprieves and the remission of fines and forfeitures. Through these mechanisms, executives (and/or administrative bodies) can, inter alia, restore civil rights, acknowledge mitigating circumstances, correct egregious sentences, prevent deportations, and support political agendas.  They can also correct the wrongful conviction of innocents.

In the 1993 case of Herrera v Collins (1993) 506 US 90, the United States Supreme Court (USSC) placed great confidence in the clemency function to remedy wrongful convictions. In ruling that Herrera’s claim of actual innocence (absent some other procedural violation in his case) was not a ground for federal habeas relief, the USSC held that (1) clemency was the “failsafe” of the criminal justice system; (2) the state clemency process was the proper mechanism for assessing innocence claims; and (3) clemency had been the historic remedy for preventing miscarriages of justice where the judicial process had been exhausted.

Herrera was decided just as the American Innocence Movement was gaining momentum. In 1992, the Innocence Project had been formed by Barry Scheck and Peter Neufeld and, by the end of 1993, a combination of Innocence Project and National Registry of Exoneration numbers reported that over 100 people had been exonerated, including fourteen whose innocence had been conclusively proven by post-conviction DNA evidence. However, since then, a number of disturbing cases – such as that of Cameron Todd Willingham and Troy Anthony Davies – have steadily highlighted the impotency of clemency for providing relief to innocent inmates. Despite presenting significant evidence of innocence, Willingham and Davies were refused clemency by Governors in Texas and Georgia respectively and, soon-after, executed. Moreover, concerns about such decisions have been exacerbated by the USSC’s decision in Ohio Adult Parole Authority v Woodard 523 U.S. 272 (1998), to afford only “minimal” due process protections to defendants in clemency proceedings and, contradictorily, hold that clemency proceedings are not “an integral part of the…system for finally adjudicating guilt or innocence of a defendant.” (Id.)

With this legal landscape as a backdrop, the research conducted by Daniel and I considers to what extent clemency is fit to handle innocence claims, in particular from the perspective of innocents who are incarcerated and seeking post-conviction relief. First, we trace the history of clemency, demonstrating how the function has never truly been one of legal significance but rather political power and policy-making, which is unfavorable to innocents. Second, we consider current clemency procedures across America, identifying obstacles for innocents applying for relief. These obstacles include a lack of transparency and meaningful review, high eligibility and relief thresholds, and unfavorable procedures and administrative board compositions. Third, we evaluate the effectiveness of Woodard’s minimal due process standard for protecting against allegedly unconstitutional clemency procedures, by reviewing a cohort of cases where such claims have been made. The rulings is these cases show, overall, courts to be applying Woodard very narrowly, a practice that has allowed clemency frameworks with significant deficiencies to continue without judicial intervention. Finally, we conclude that with little history or current frameworks dedicated to innocence claims, obstacles to meaningful review, antipathetic executive attitudes, minimal constitutional protection, and courts reluctant to interfere, clemency, to a large extent, is a hostile environment for innocence claims.

The findings of our research appear all the more important after a study released in May, 2014 concluded that 4% of defendants sentenced to death in America are innocent. Although not focused on clemency, the findings of the study should lead us to question more aggressively the utility of the clemency system for innocence claims. The study concluded that “the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten.” Lead researcher, Professor Samuel Gross, commented to The Guardian “In many cases when people are released from death row, little or nothing is done to deal with the equally bad injustice they now face – that they will spend the rest of their lives in prison for a crime they didn’t commit.”  For these defendants, clemency will be a crucial, if not the only, remaining avenue for obtaining relief once their post-conviction arsenal has ran out. As such, the need to resolve the tension between the clemency systems and innocence has never been greater.

Sarah Lucy Cooper & Daniel Gough, The Controversy of Clemency and Innocence in America (forthcoming 2014).
Herrera v Collins (1993) 506 US 90
Ohio Adult Parole Authority v Woodard 523 U.S. 272 (1998)