CLEMENCY
Leniency or mercy. A power given to a public official, such as a governor or the president, to in some way lower or moderate the harshness of punishment imposed upon a prisoner.
Clemency is considered to be an act of grace.
It is based on the policy of fairness, justice, and
forgiveness. It is not a right but rather a privilege,
and one who is granted clemency does not
have the crime forgotten, as in AMNESTY, but is
forgiven and treated more leniently for the criminal
acts. Clemency is similar to pardon inasmuch
as it is an act of grace exempting someone
from punishment. Commutation of an
offender’s sentence, however, is the lessening of
the punishment based on the offender’s own
good conduct subsequent to his conviction.
Although clemency is a privilege and not a
right, questions have arisen as to whether a prisoner
sentenced to death is entitled to certain
constitutional rights during a clemency proceeding.
States that impose the death penalty
require a clemency review before a prisoner is
executed. For example, Ohio requires the state
PAROLE authority to conduct a clemency review
45 days before the date of execution and file its
report with the governor. As part of the review
the prisoner may request an interview with a
parole board member but the prisoner does not
have the right to have an attorney present.
An Ohio death row inmate objected to the
interview on two grounds, contending it violated
his FIFTH AMENDMENT right against SELFINCRIMINATION
and his FOURTEENTH AMENDMENT
right to DUE PROCESS. He insisted that he
should not have to make a choice between seeking
clemency and remaining silent about the
crime he had been convicted of, and of other
crimes he may have committed. A federal
appeals court agreed with the inmate that the
process violated his Fifth Amendment right, but
the Supreme Court reversed the decision in
Ohio Adult Parole Authority v.Woodard, 523 U.S.
272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998).
The Supreme Court found that the inmate
did not have any due process rights because
clemency could only be given at the discretion of
the governor. Moreover, the EXECUTIVE
BRANCH, not the judicial branch, conducted the
process. In addition, the Court cited prior rulings
where it had stated that pardon and commutation
proceedings have not traditionally
been the business of courts and are rarely, if ever,
appropriate subjects for JUDICIAL REVIEW. As to
the Fifth Amendment argument, the Court
ruled that the inmate had to exercise the same
choice he had made at trial: to testify or to
remain silent. In the Ohio clemency process, the
inmate has a choice of providing information—
at the risk of damaging his case for clemency or
for post-conviction relief—or of remaining
silent.
Acts of clemency are usually issued in isolated
cases. In 2002, however, outgoing governor
George Ryan announced that he had concerns
about the fairness of Illinois judicial proceedings
against 160 death row inmates, which compelled
him to begin clemency review proceedings into
their crimes. During the fall of 2002 a special
review board conducted public hearings and private
reviews concerning each inmate’s case. Relatives
of victims gave emotional testimony, while
attorneys for the inmates pointed out troublesome
charges, including the use of torture on
suspects to make them confess. In January 2003,
Governor Ryan took the unprecedented step of
granting clemency to all the death row inmates. He pardoned four inmates who he believed were
not guilty; the remainder of the inmates were
given life sentences. Ryan concluded that the
legal process surrounding CAPITAL PUNISHMENT
had become so corrupted that he had no choice
but to grant clemency.
FURTHER READINGS
Burnett, Cathleen. 2002. Justice Denied: Clemency Appeals in
Death Penalty Cases. Boston: Northeastern Univ. Press.
Davey, Monica, and Steve Mills. 2003. “Ryan Issues Blanket
Clemency.” Chicago Tribune (January 11).
Gagne, Patricia. 1998. Battered Women’s Justice: The Movement
for Clemency and the Politics of Self-Defense. New
York: Twayne.
CROSS-REFERENCES
Due Process of Law; Prisoners’ Rights.
