CLEMENCY IN A TIME OF CRISIS
Cara H. Drinan*
ABSTRACT
At the state level, the power to pardon or commute a criminal
sentence—that is, to grant clemency—is vested in either the
Governor, an executive clemency board, or some combination
thereof. Until very recently, clemency grants were a consistent
feature of our criminal justice system. In the last four decades,
though, state clemency grants have declined significantly; in some
states, clemency seems to have disappeared altogether. In this
Article, I contend that executive clemency should be revived at the
state level in response to ongoing systemic criminal justice failings.
Part I of this Article describes clemency at the state level today.
Despite judicial and scholarly support for the role of clemency in our
criminal justice system, state clemency practice fails to live up to its
theoretical justifications. Part II of this Article makes the case for a
policy of vigorous clemency on both theoretical and practical
grounds. Not only was clemency designed, at least in part, to serve
an error-correcting function, but also, today, there are several
reasons why state executive actors may be able to use their clemency
power robustly without suffering politically. In Part III, I address
questions of implementation. If state executive actors are to pursue
commutations of sentences or pardons, which inmates should be the
subject of such pursuits? How can those executive actors best be
insulated from political pressure? In sum, this Article argues that
revitalizing state clemency is a valuable and viable component of
broader criminal justice reform.

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INTRODUCTION
Every state grants the governor or some executive body the power
to grant clemency—that is, the power to pardon or commute a
criminal sentence.1 This power is deeply rooted in American history,2
and as recently as the first half of the twentieth century, clemency
grants were a regular feature of our criminal justice system.3 Even in
states with traditionally high execution rates, governors granted
clemency to death row inmates in a substantial number of cases. For
example, between 1923 and 1972 Texas executed 461 people, but
during the same time period, Texas governors commuted 100 capital
sentences.4 Today, state clemency grants have all but disappeared
from the political landscape.5 Since 1976, when the United States
reinstated the death penalty,6 Texas has executed 477 people, while
its governors have granted clemency for only two inmates.7 Some
capital states have not commuted any death sentences in the postGregg era.8 I discuss a few notable exceptions later in this Article,
* Associate Professor, Columbus School of Law, The Catholic University of America. This paper was
presented at the Georgia State Law Review Symposium on January 27, 2012. I received helpful
comments from other Symposium participants and from Anne Traum and Megan La Belle. Justin
D’Aniello, Elizabeth Edinger and Jennifer Pollack provided diligent research assistance.
1. Kathleen Ridolfi & Seth Gordon, Gubernatorial Clemency Powers: Justice or Mercy?, CRIM.
JUST., Fall 2009, at 31–32.
2. See generally Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power
from the King, 69 TEX. L. REV. 569, 583–605 (1991) (discussing history and origins of clemency).
3. James R. Acker & Charles S. Lanier, May God—or the Governor—Have Mercy: Executive
Clemency and Executions in Modern Death-Penalty Systems, 36 CRIM. L. BULL. 200, 212–13 (2000).
4. Id. at 213 tbl.1.
5. See generally Elizabeth Rapaport, Straight Is the Gate: Capital Clemency in the United States
from Gregg to Atkins, 33 N.M. L. REV. 349, 353–66 (2003) (discussing the general decline and offering
explanations).
6. In 1976, the Court determined in three separate cases, referred to as “the Gregg decision,” that
state statutes provided sufficient guided discretion to juries imposing death sentences and that the death
penalty was constitutional. See Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262
(1976); Proffitt v. Florida, 428 U.S. 242 (1976). With these decisions, a more than ten-year moratorium
on the death penalty in America came to an end. See Convicted Georgia Murderer Facing Execution on
July 1, N.Y. TIMES, June 18, 1980 (identifying Gary Gilmore as the first inmate to be executed in the
post-Gregg era).
7. See
State
by
State
Database,
DEATH
PENALTY
INFO.
CTR,
http://www.deathpenaltyinfo.org/state_by_state (select “Texas” from drop down menu) (last visited
Dec. 1, 2011).
8. For example, no capital sentences have been commuted in either Arizona or Mississippi since
1976. See Id. (select “Arizona” or “Mississippi” from drop down menu).

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but the overall decline in state clemency grants is consistent and
pronounced.9
This anemic notion of state clemency is misguided—even when
the criminal justice system is functioning fairly and efficiently.10
Clemency is designed to serve several laudable goals: it “serve[s] as
a check on the judiciary;”11 it enables error-correction in a criminal
justice system fraught with mistakes;12 it may “afford relief from
undue harshness;”13 and it “help[s] ensure that justice is tempered by
mercy.”14 Moreover, as Justice Kennedy explained in his 2003
address to the American Bar Association, “[a] people confident in its
laws and institutions should not be ashamed of mercy.”15 Under the
best of circumstances, clemency acts as a safety valve and enables
gestures of compassion.
However, when the criminal justice system is a shambles—as ours
is today—the case for clemency is even stronger. By all accounts, the
9. Michael Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89
VA. L. REV. 239, 251 (2003) (noting the decline in and infrequent use of clemency from 1973 to 1999).
10. In this Article, I focus on the need to revitalize state clemency practice, but scholars have noted
the infrequent use of clemency at the federal level and have urged reform of the presidential pardon
power. See, e.g., Douglas A. Berman, Turning Hope-and-Change Talk into Clemency Action for
Nonviolent Drug Offenders, 36 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 59 (2010); Margaret
Colgate Love, The Twilight of the Pardon Power, 100 J. CRIM. L. & CRIMINOLOGY 1169 (2010).
11. Michael A.G. Korengold, Todd A. Noteboom & Sara Gurwitch, And Justice for the Few: The
Collapse of the Capital Clemency System in the United States, 20 HAMLINE L. REV. 349, 356 (1996).
12. For example, 289 post-conviction DNA exonerations have occurred in the United States. See
Facts
on
Post-Conviction
DNA
Exonerations,
INNOCENCE
PROJECT,
http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php
(last
visited Feb. 8, 2012).
13. United States v. Angelos, 345 F. Supp. 2d 1227, 1261 (D. Utah 2004) (quoting Ex Parte
Grossman, 267 U.S. 87, 120 (1925)).
14. Cavazos v. Smith, 132 S. Ct. 2, 7 (2011). See generally Rachel E. Barkow, The Ascent of the
Administrative State and the Demise of Mercy, 121 HARV. L. REV. 1332, 1359–62 (2008) (explaining
the unique role that clemency and jury nullification can play today when judges have little freedom to
treat defendants as individuals).
15. Justice Anthony Kennedy, Speech at the Am. Bar Ass’n Annual Meeting (Aug. 9, 2003),
available
at
http://www.abanow.org/2003/08/speech-by-justice-anthony-kennedy-at-aba-annualmeeting/. Regarding clemency, Justice Kennedy went on to say:
The greatest of poets reminds us that mercy is ‘mightiest in the mightiest. It becomes the
throned monarch better than his crown.’ I hope more lawyers involved in the pardon
process will say to Chief Executives, “Mr. President,” or “Your Excellency, the
Governor, this young man has not served his full sentence, but he has served long
enough. Give him what only you can give him. Give him another chance. Give him a
priceless gift. Give him liberty.”
Id.

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American criminal justice system is in need of an overhaul.16 The
Sixth Amendment right to counsel, meant to safeguard the liberty
interests of indigent criminal defendants, has been widely described
as more of a myth than a reality in practice.17 States regularly flout
their constitutional obligations under the Sixth Amendment,18 while
defendants rarely, if ever, have a chance to seek redress in federal
court.19 At the same time, with more than two million adults and
children behind bars,20 the United States leads the world in its rate of
incarceration.21 Our prisoners serve longer sentences than they ever
have before,22 and our states spend hundreds of millions of dollars
each year to maintain their corrections systems.23 In short, “[o]ur
resources are misspent, our punishments too severe, our sentences
too long.”24

16. Numerous reports and articles have documented the nation’s criminal justice failures, including
its over-reliance on incarceration, failure to protect the rights of poor criminal defendants,
disproportionate impact upon people of color, and failure to enable rehabilitation and reentry into
society. See generally AM. CIV. LIB. UNION, SMART REFORM IS POSSIBLE (2011) [hereinafter SMART
REFORM IS POSSIBLE], available at www.aclu.org/files/assets/smartreformispossible.pdf; NAACP,
MISPLACED PRIORITIES: OVER INCARCERATE, UNDER EDUCATE (2011), available at
http://naacp.3cdn.net/01d6f368edbe135234_bq0m68x5h.pdf; NAT’L RIGHT TO COUNSEL COMM., THE
CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA’S CONTINUING NEGLECT OF OUR
CONSTITUTIONAL RIGHT TO COUNSEL (2009) [hereinafter JUSTICE DENIED], available at
http://www.constitutionproject.org/pdf/139.pdf.
17. See generally STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, AM. BAR ASS’N,
GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING QUEST FOR EQUAL JUSTICE (2004) [hereinafter
GIDEON’S
BROKEN
PROMISE],
available
at
http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_d
ef_bp_right_to_counsel_in_criminal_proceedings.authcheckdam.pdf (concluding that the promise of
equal justice for the indigent remains unfulfilled).
18. Id.
19. See Joseph L. Hoffman & Nancy J. King, Rethinking the Federal Role in State Criminal Justice,
84 N.Y.U. L. REV. 791, 806–10 (2009) (explaining why federal habeas today provides little practical
relief to most prisoners).
20. ROY WALMSLEY, KING’S COLLEGE LONDON SCHOOL OF LAW, WORLD PRISON POPULATION
LIST (8th ed. 2008), available at http://www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl8th_41.pdf.
21. Id.
22. See also Todd R. Clear & James Austin, Reducing Mass Incarceration: Implications of the Iron
Law of Prison Populations, 3 HARV. L. & POL’Y REV. 307, 312 (2009) (describing legislation in late
twentieth century that lengthened average prison sentences).
23. Between 1982 and 1999 federal, state, and local government spending on corrections went from
$9 billion to $49 billion. AM. BAR ASS’N., JUSTICE KENNEDY COMMISSION, REPORT WITH
RECOMMENDATIONS 17 (2004).
24. Kennedy, supra note 15.

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In recent years, scholars have proposed a number of reform
measures designed to reduce our national reliance on incarceration,
generating hope in a “decarceration” movement.25 Such measures
include sentencing reform,26 crime prevention efforts,27 and emphasis
upon offender re-entry into society.28 Some politicians—including
those previously perceived as tough-on-crime—have embraced and
implemented these proposals.29 These are valuable and promising
developments. In this Article, I argue that robust state clemency
should also be a piece of the reform puzzle.
Part I of this Article describes clemency at the state level today.
Despite judicial and scholarly support for the role of clemency in our
criminal justice system, state clemency practice fails to live up to its
theoretical justifications. In many jurisdictions, clemency has fallen
into disuse altogether; when clemency grants do happen, too many
appear arbitrary and rooted in favoritism. Part II of this Article makes
the case for a policy of vigorous clemency on both theoretical and
practical grounds today. Other scholars have argued for the revival of
clemency in recent years, especially with respect to discrete inmate
populations, but most, if not all, assume that clemency will meet a
hostile political climate. In Part II of this Article, I argue that
25. See Marsha Weissman, Aspiring to the Impracticable: Alternatives to Incarceration in the Era of
Mass Incarceration, 33 N.Y.U. REV. L. & SOC. CHANGE 235 (2009); see also Marc Mauer, Sentencing
Reform: Amid Mass Incarcerations—Guarded Optimism, 26 CRIM. JUST. 27 (2011) (describing basis for
optimism about sentencing reform).
26. After years of criticism, the federal government enacted legislation to reduce the sentencing
disparity between crack and powder cocaine. See Fair Sentencing Act of 2010, Pub. L. No. 111-220
(2010). Because of the recession and prison overcrowding, many jurisdictions have also begun to
explore sentencing reforms. See, e.g., Ron Jackson, Jr., Alternative Sentencing Programs Show Growing
Success in Oklahoma, OKLAHOMAN (Mar. 27, 2011), http://newsok.com/alternative-sentencingprograms-show-growing-success-in-oklahoma/article/3552231#ixzz1HtcXbemB (discussing sentencing
options available).
27. For example, scholars are probing the “school to jail” connection and advocating for solutions
that prevent criminal activity. See Michael Rocque & Raymond Paternoster, Understanding the
Antecedents of the School to Jail Link: The Relationship Between Race and School Discipline, 101 J.
CRIM. L. & CRIMINOLOGY 633, 634-37 (2011) (describing the link).
28. See, e.g., Michael Pinard & Anthony C. Thompson, Offender Reentry and the Collateral
Consequences of Criminal Convictions: An Introduction, 30 N.Y.U. REV. L. & SOC. CHANGE 585
(2006); see also Edward E. Rhine & Anthony C. Thompson, The Reentry Movement in Corrections:
Resiliency, Fragility and Prospects, 47 CRIM. LAW BULL. 177 (2011).
29. See, e.g., Deborah Sontag, Perry Displays Varied Stance Toward Crime, N.Y. TIMES (Oct. 30,
2011),
http://www.nytimes.com/2011/10/31/us/politics/rick-perry-displays-varied-stance-towardcrime.html.

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clemency today is theoretically justified, and moreover, that it may
not be politically deleterious under the right circumstances. Part III
addresses questions of implementation. For example, if state
executive actors are to pursue commutations of sentences or pardons,
how can those executive actors best be insulated from political
pressure? Which inmates should be the subject of such pursuits? I
offer some preliminary answers to these important questions. In
conclusion, I note that a revitalized model of state clemency should
by no means be viewed as a panacea, but it should be viewed as a
viable and valuable reform measure.
I. STATE CLEMENCY TODAY
Clemency in America is an often misunderstood act of executive
grace.30 Executive clemency includes the power to pardon a criminal
defendant, reduce a sentence, or grant a stay of execution.31 At the
state level, the clemency power is vested in the Governor, an
executive clemency board, or some combination thereof.32 For
example, Virginia vests its clemency power in the Governor alone,
while Texas grants the Governor final decision-making authority but
requires a recommendation of clemency from a board.33 In Ohio, the
Governor is required to hear from the board, but the board’s
recommendation is non-binding.34 In a handful of states, a board
alone makes clemency decisions.35
30. First, there are many forms of clemency. See Ridolfi & Gordon, supra note 1, at 3 (defining
forms of clemency). Second, contrary to the rare incidence of clemency grants, clemency is often
perceived as a widely available source of relief. See, e.g., Alan Prendergast, Clemency for These Six
Prisoners Could Save Millions and Serve Justice—So Why Won’t Governor Ritter Try it?, 2009 WLNR
21126425 *2 (Oct. 22, 2009) (“When we went to the legislature to get the law changed for juveniles in
the adult system, they told us, ‘There’s always clemency,’” recalls Mary Ellen Johnson, director of the
Pendulum Foundation, a juvenile-justice nonprofit based in Denver. “They were shocked when we told
them that nobody gets clemency.”).
31. Ridolfi & Gordon, supra note 1, at 3 (defining forms of clemency).
32. See
generally
State
by
State
Database,
DEATH PENALTY INFO. CTR.,
http://www.deathpenaltyinfo.org/state_by_state (last visited Dec. 13, 2011) (listing clemency process by
state).
33. Id.
34. Id.
35. Id.

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The Supreme Court has recognized that “[c]lemency is deeply
rooted in our Anglo-American tradition of law, and is the historic
remedy for preventing miscarriages of justice where judicial process
has been exhausted.”36 Scholars, too, have articulated several
justifications for the role of clemency in our criminal justice system:
it can correct errors and amend sentences where parole has been
abolished;37 it can facilitate re-entry into society when it comes in the
form of a pardon;38 it can reward rehabilitation in prison and remedy
gross sentencing disparities among similarly culpable defendants;39
and it can prompt broad reform by drawing attention to systemic
failings in the justice system.40 Thus, legal practitioners and scholars
alike recognize the valuable role that clemency plays in our criminal
justice system.
As recently as the mid-twentieth century, state executive actors
shared this view of clemency—at least to the extent that they
regularly used their clemency power.41 Today, despite popular
perception to the contrary,42 state clemency grants have become a
truly rare occurrence. In all of the nation’s thirty-eight death penalty
states, there have been only 270 commutations since 1976, and 167
of those were part of Governor Ryan’s commutation of Illinois’
entire death row in 2003.43 In several states there have been only one
or two commutations of a death sentence in the last few decades, and
in some states there have been none.44 There is no disputing the fact
that clemency is no longer a regularly exercised power at the state
level.
36. Herrera v. Collins, 506 U.S. 390, 411–12 (1993).
37. Rachel Barkow, The Politics of Forgiveness: Reconceptualizing Clemency, 21 FED. SENT’G REP.
153, 153 (2009).
38. Id.
39. Molly M. Gill, Clemency for Lifers: The Only Road Out is the Road Not Taken, 21 FED. SENT’G
REP. 21, 22 (2009).
40. Barkow, supra note 14, at 1361–62 (discussing Governor Ryan’s commutation of death row
inmates in Illinois and the attention his decision brought to systemic errors).
41. Acker & Lanier, supra note 3, at 211–12.
42. See supra note 30 and accompanying text.
43. See generally Clemency, DEATH PENALTY INFO. CTR.,
http://www.deathpenaltyinfo.org/clemency (last visited Jan. 25, 2011) (listing commutations since 1976
by state).
44. See generally id.

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When it has been used in recent years, for the most part, clemency
has not earned a good reputation either in the mainstream media or
among academics. For example, Governor Charlie Crist’s 2010
posthumous pardon of Jim Morrison appeared to reflect the instincts
of a fan rather than a governor.45 Morrison had been convicted of
indecent exposure at one of his 1969 concerts, and his case had been
on appeal when the singer died in 1971.46 In his last few months of
office, then-Governor Crist explained that pursuing a pardon for
Morrison was “the right thing to do.”47 He said at the time:
In some ways it seems like a tragic conclusion to a young
man’s life to have maybe this be a lasting legacy, where
we’re not even sure that it actually occurred. The more that
I’ve read about the case and the more I get briefed on it, the
more convinced I am that maybe an injustice has been done
here.48
The Florida Clemency Board unanimously agreed to pardon
Morrison in Crist’s last month of office.49
In light of Morrison’s death, his pardon case was not timesensitive, and moreover, Governor Crist had far more important
clemency cases to consider. In May, 2010, the United States Supreme
Court held that a life-without-parole sentence for a juvenile nonhomicide offender violates the Eighth Amendment ban on cruel and
unusual punishment.50 As a result of the Graham decision, Florida
was effectively under a Supreme Court mandate to amend the lifewithout-parole sentences of its juvenile non-homicide offenders.
Because of the state legislature’s inability to pass corrective
45. Dave Itzkoff, Jim Morrison is Candidate for Pardon in ‘69 Arrest, N.Y. TIMES, Nov. 16, 2010,
at A16 (noting the governor “seemed to side with many Doors fans in explaining his decision to seek a
pardon for Morrison” and that the two both attended Florida State University).
46. Id.
47. Id.
48. Id.
49. Susan Candiotti, Doors Singer Jim Morrison Wins Indecent Exposure Pardon, CNN (Dec. 9,
2010),
http://articles.cnn.com/2010-12-09/entertainment/ent.jim.morrison.pardon_1_jim-morrisonexposure-charge-indecent-exposure?_s=PM:SHOWBIZ.
50. Graham v. Florida, 130 S. Ct. 2011, 2034 (2010).

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legislation and the resulting confusion for state court judges, it would
have been prudent for Crist to seek executive clemency in order to
commute the sentences of the affected juvenile offenders.51 Instead,
as the local newspapers reported, Governor Crist sought clemency for
a deceased singer whom he had once admired.52
In contrast, many people were stunned by the denial of clemency
in the case of Troy Davis. Mr. Davis had been convicted of killing a
Georgia police officer in 1989, and in the wake of his conviction,
several of the witnesses who had testified against him recanted their
testimony.53 In a rare occurrence, the United States Supreme Court
remanded Mr. Davis’s case for an evidentiary hearing regarding his
innocence.54 Despite the fact that the District Court failed to find
enough evidence to overturn the conviction, serious doubts about Mr.
Davis’s guilt remained.55 In addition, there was unprecedented
international support for clemency in Mr. Davis’s case, including
personal pleas for mercy from Pope Benedict the XVI, the former
Chief Justice of the Georgia Supreme Court, and President Carter.56
Despite this groundswell of support for mercy in Davis’s case, the
Georgia Board of Pardons denied clemency, and the state executed
Mr. Davis on September 21, 2011.57 In light of examples like these, it
is no wonder much of the public is skeptical of clemency and views it
as an exercise of favoritism rather than reasoned mercy.58
51. See generally Cara H. Drinan, Graham on the Ground, 87 WASH. L. REV. (forthcoming 2012),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1900005 (discussing the task of
implementing the Graham decision and its particular application to Florida).
52. See supra text accompanying note 45; see also Brendan Farrington, Charlie Crist Wants the
Doors’ Jim Morrison Pardoned, NAPLESNEWS.COM (Nov. 17, 2010, 10:42 P.M.),
http://www.naplesnews.com/news/2010/nov/17/charlie-crist-wants-doors-jim-morrison-pardoned/.
53. Adam Liptak, Supreme Court Orders New Look at Death Row Case, N.Y. TIMES, Aug. 17, 2009,
at A15.
54. Adam Liptak, Justices Deny New Appeal by Convict in Georgia, N.Y. TIMES, Mar. 28, 2011, at
A20 (describing the Supreme Court’s remand order).
55. Editorial, A Grievous Wrong, N.Y. TIMES, Sept. 20, 2011, at A30, available at
http://www.nytimes.com/2011/09/21/opinion/a-grievous-wrong-on-georgias-death-row.html (describing
doubts that remained the day before Mr. Davis’s execution).
56. Id.; see also Bill Rankin & Rhonda Cook, Troy Davis’ Life in Board’s Hands, ATLANTA
J.-CONST., Sept. 18, 2011, available at http://www.ajc.com/news/troy-davis-life-in-1183243.html.
57. Kim Severson, Troy Davis Executed in Georgia After 4-Hour Delay, N.Y. TIMES, Sept. 21,
2011, at A1, available at http://www.nytimes.com/2011/09/22/us/final-pleas-and-vigils-in-troy-davisexecution.html.
58. Cf. Berman, supra note 10, at 69 (“Many, if not most, Americans now likely associate the

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Like much of the public, academics have been highly critical of
state clemency practices. The Supreme Court has consistently taken
the position that “a petition for commutation, like an appeal for
clemency, ‘is simply a unilateral hope,’”59 and the Court has declined
to interfere with state clemency procedures.60 As a result, there is
great variety in state clemency application procedures,61 as well as in
the resources made available to applicants. Applicants have
challenged the lack of a public clemency hearing, the absence of an
explanation for clemency denial, the absence of clemency records,
and the lack of a right to clemency counsel. Courts have uniformly
rejected these challenges.62 Scholars have decried this status quo in
clemency procedure, noting that procedures are largely
“standardless,” decisions are “discretionary,” and results are
“unreviewable.”63 Yet, in light of the Supreme Court’s decisions in
this area, if procedural reform is to happen, it will need to come from
the states themselves.
In the next part of this Article, I argue that clemency can and
should be put to better, more regular use.

clemency power with cronyism and scandal, and few have reason to understand the noble and sensible
goals that the Framers sought to further by guaranteeing this power to the president in the
Constitution.”).
59. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280 (1998) (holding that Ohio clemency
procedures allowing the applicant to be interviewed without counsel violated neither the Due Process
Clause nor the Fifth Amendment privilege against self-incrimination).
60. Justice O’Connor, joined by Justices Souter, Ginsburg, and Breyer articulated the position that
states need to provide some “minimal procedural safeguards [that] apply to clemency proceedings.” Id.
at 289. For example, she explained: “Judicial intervention might . . . 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.; see also Conn. Bd.
of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (holding that Connecticut clemency procedure did
not violate the Due Process clause in failing to provide explanation for denial of clemency); Mary-Beth
Moylan & Linda E. Carter, Clemency in California Capital Cases, 14 BERKELEY J. CRIM. L. 37, 50–53
(2009) (describing the lack of successful Due Process challenges to state clemency procedures).
61. See generally Ridolfi & Gordon, supra note 1.
62. Moylan & Carter, supra note 60, at 53.
63. Hugo Adam Bedau, The Decline of Executive Clemency in Capital Cases, 18 N.Y.U. REV. L. &
SOC. CHANGE 255, 257 (1990); see also Adam Gershowitz, The Diffusion of Responsibility in Capital
Clemency, 17 J. L. & POL. 669 (2001) (arguing for Due Process protections in clemency procedures);
Kobil, supra note 2, at 633–36 (discussing proposals for reforming clemency procedure).

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II. THE CASE FOR CLEMENCY IN A TIME OF CRISIS
Over the last few decades, states have consistently shirked their
obligation to provide indigent criminal defendants with effective
representation at trial, and at the same time, they have consistently
increased the consequences for criminal acts and the number of
people behind bars. This should not be surprising as scholars have
long recognized the political process challenge presented by criminal
justice reform; legislative bodies tend to devalue the rights of
indigent criminal defendants who “have no lobby,” while they
overvalue the short-term gains generated by tough-on-crime stances.
While the economic crisis has brought renewed attention to criminal
justice matters—generating some hope in lasting reform—robust
state clemency has a role to play in the reform movement. In this Part
of the paper, I make the case for clemency in a time of crisis. First, I
argue that robust clemency is theoretically justified in light of
ongoing, entrenched criminal justice failings. Second, I suggest that
recent experience calls into question the perceived political risk of
clemency grants.
A. Robust Clemency Today Is Theoretically Justified
As mentioned at the outset, courts and scholars have recognized
that clemency serves several important functions: it can be a check
on the judiciary; it can be a “safety-valve” that allows for errorcorrection; and it can be an opportunity for state acts of mercy. There
may be strong theoretical arguments to be made for reviving
clemency in all three of these lights, but in this Article, my primary
focus is on clemency in its error-correction capacity. I conceive of
clemency as an error-corrector in two specific ways. First, clemency
may be justified to correct the errors of systemic indigent defense
failings. Second, clemency may be justified to correct the error of
draconian sentencing enhancements over the last three decades. In
this sub-section, I address each theoretical justification in turn.

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1. Clemency to Correct Systemic Defense Errors
In 2003, after a three-year study, Republican Illinois Governor
George Ryan determined that the state’s criminal justice system was
deeply flawed and prone to error.64 Consequently, Ryan used his
clemency power to commute the sentences of the state’s entire death
row population and to pardon four inmates.65 With respect to the
seventeen exonerations that had taken place in Illinois, Ryan said:
[I]n almost every one of the exonerated seventeen, we not
only have breakdowns in the system with police,
prosecutors and judges, we have terrible cases of shabby
defense lawyers. There is just no way to sugarcoat it. There
are defense attorneys that did not consult with their clients,
did not investigate the case and were completely
unqualified to handle complex death penalty cases. They
often didn’t put much effort into fighting a death
sentence.66
Ryan left office days after his commutation announcement, but the
findings of his Capital Punishment Commission had a lasting impact.
There were no executions under subsequent governors, and in March
of 2011, Illinois Governor Pat Quinn signed into law a statewide ban
on the death penalty, while commuting the death sentences of fifteen
death row inmates to life in prison.67
The lack of effective representation identified by Ryan’s Capital
Punishment Commission is neither unique to capital cases nor to the
state of Illinois. Rather, the indigent defense crisis is national in
scope and has only deepened since the 2008 recession.68 Eighty
64. George Ryan, Governor of Ill., Speech before Northwestern University College of Law (Jan 11,
2003), in N.Y. TIMES, Jan. 11, 2003, http://www.nytimes.com/2003/01/11/national/11CND-RTEX.html.
65. Id.; Jodi Wilgoren, 4 Death Row Inmates are Pardoned, N.Y. TIMES, Jan. 11, 2003,
http://www.nytimes.com/2003/01/11/us/4-death-row-inmates-are-pardoned.html.
66. Ryan, supra note 64.
67. Ray Long, Illinois Death Penalty Ban Takes Effect Friday, CHICAGO TRIBUNE (June 30, 2011),
http://articles.chicagotribune.com/2011-06-30/news/chi-illinois-death-penalty-ban-takes-effect-friday20110630_1_death-penalty-maximum-security-prisons-pontiac-correctional-center.
68. A full description of the national indigent defense crisis is outside the scope of this Article, but

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percent of criminal defendants are poor,69 and public defense systems
across the board receive far too little funding to represent these
individuals.70 As a result, public defenders have workloads that
exceed nationally recommended guidelines—sometimes egregiously
so.71 A 2009 decision of the Missouri Supreme Court dealing with
defender workloads found that defenders were spending less than
eight hours on appellate and capital cases.72 In other cash-strapped
jurisdictions, lawyers are hired to represent indigent criminal
defendants on the basis of their expedience, rather than their
experience or lawyering skill.73 In many jurisdictions, the most
fundamental problem with the defense system is its lack of
independence from judicial and political interference.74 National
studies of indigent defense services over several decades have all

its existence and symptoms have been well documented by scholars and practitioners. See, e.g., NAT’L
ASS’N OF CRIM. DEF. LAWYERS, MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S
BROKEN MISDEMEANOR COURTS (2009) [hereinafter MINOR CRIMES, MASSIVE WASTE], available at
http://www.nacdl.org/public.nsf/defenseupdates/misdemeanor/$FILE/Report.pdf; JUSTICE DENIED,
supra note 16; GIDEON’S BROKEN PROMISE, supra note 17; Stephen B. Bright, Counsel for the Poor:
The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L. J. 1835 (1994);
Adam Gershowitz, Raise the Proof: A Default Rule for Indigent Defense, 40 CONN. L. REV. 85 (2007);
Erica J. Hashimoto, The Price of Misdemeanor Representation, 49 WM. & MARY L. REV. 461 (2007);
Jenny M. Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal
Courts, 45 U.C. DAVIS L. REV. 277 (2011).
69. Cf. Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 CALIF. L. REV. 1, 50 (2010).
70. Cara H. Drinan, The National Right to Counsel Act: A Congressional Solution to the Nation’s
Indigent Defense Crisis, 47 HARV. J. ON LEGIS. 487, 491 (2010).
71. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: COUNTY-BASED AND
LOCAL
PUBLIC
DEFENDER
OFFICES
(2007),
available
at
http://bjs.ojp.usdoj.gov/content/pub/pdf/clpdo07.pdf (reporting that 73% of county-based public
defender offices exceeded the maximum recommended number of cases per year per attorney); BUREAU
OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: STATE PUBLIC DEFENDER PROGRAMS
(2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/spdp07.pdf (reporting that 79%, or 15 of 19
state offices, exceeded the maximum recommended number of felony and misdemeanor cases per
attorney).
72. State ex rel. Mo. Public Defender Comm’n v. Pratte, 298 S.W.3d 870, 873 (Mo. 2009) (“The
statewide public defender system, under rules adopted by the commission, had the capacity last fiscal
year to spend only 7.7 hours per case, including trial, appellate and capital cases.”).
73. GIDEON’S BROKEN PROMISE, supra note 68, at 11–12 (discussing witness testimony to this
effect); see also AM. CIVIL LIB. UNION, FAILING GIDEON: UTAH’S FLAWED COUNTY-BY-COUNTY
PUBLIC DEFENDER SYSTEM (2011), http://www.acluutah.org/Failing_Gideon.pdf (discussing this
dynamic in Utah, where there is no public funding or oversight of county-run defender programs).
74. GIDEON’S BROKEN PROMISE, supra note 17, at 20–21.

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come to the conclusion that “indigent defense systems are struggling”
and “many are truly failing.”75
Unfortunately, state legislative and judicial bodies have been
reticent to enact sweeping indigent defense reform. To begin, the
political pressure to be perceived as tough on crime has made it
historically difficult for lawmakers to pursue indigent defense
reform.76 At the same time, state courts have been hesitant to
intervene in challenges to indigent defense systems, and the federal
courts historically have been unavailable because of federalism
principles.77 Only very recently, as the economy fell into recession,
have lawmakers been willing to explore reform efforts that would
benefit taxpayers and indigent defendants alike.78
Accordingly, clemency grants may be justified as a check on
judicial and legislative bodies that have been unable (or unwilling) to
insist upon indigent defense reform. Simply because a state actor
justifies clemency on the basis of a systemic problem, like a broken
indigent defense system, does not require the state actor to grant
clemency on a systemic basis. Rather, it may mean that state
executive actors pay particular attention to clemency applications that
reflect the symptoms of a broken indigent defense system.
For example, in 2002, Leonard Rojas was executed in Texas
despite his legitimate claim of ineffective assistance of counsel.79
Under state law, Mr. Rojas’s habeas attorney was required to conduct
a thorough investigation. Instead, his lawyer admitted in an affidavit
that he spoke with Rojas only once, read the trial transcript, spoke to
one trial attorney, and did no independent investigation.80 In addition,
75. JUSTICE DENIED, supra note 16, at 2 (italics omitted).
76. James Forman, Jr. Why Care About Mass Incarceration?, 108 MICH. L. REV. 993, 994 (2010)
(“[P]oliticians make careers out of being tough on crime, only to lose elections to those who are yet
tougher.”).
77. A full discussion of systemic indigent defense litigation is outside the scope of this Article. For
an overview, see Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. REV.
L. & SOC. CHANGE 427 (2009); see also Adele Bernhard, Take Courage: What the Courts Can Do To
Improve the Quality of Criminal Justice Services, 63 UNIV. PITT. L. REV. 293 (2002).
78. See generally SMART REFORM IS POSSIBLE, supra note 16 (identifying trend of states reforming
in part out of fiscal need).
79. Brandi Grissom, Scrutinizing Perry’s Extensive Execution Record, N.Y. TIMES, Sept. 2, 2011, at
A19 (discussing the Rojas case).
80. Janet Elliott, Judges Criticize Court of Criminal Appeals Decision, HOUSTON CHRON. (Feb. 14,

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Mr. Rojas’s counsel failed to tell him that he lost his appeal for state
habeas relief, and without consulting Rojas, his lawyer waived
Rojas’s right to a federal habeas petition.81 Perhaps most damning,
when the Texas Court of Criminal Appeals appointed the attorney to
represent Mr. Rojas in his capital post-conviction review, the
attorney had already received two probated suspensions from the
State Bar of Texas.82
In 2002, when Mr. Rojas sought clemency, countless reports had
been generated criticizing the state’s indigent defense services,
particularly in light of its highly punitive practices.83 When an inmate
grounds his appeal for clemency in a claim of grossly ineffective
representation, as Mr. Rojas did, state actors should pay attention—
especially if the claim is indicative of systemic failures. While such
failures require legislative correction in the long run, state actors can
and should use clemency as a tool to correct errors that flow from a
broken system. In doing so, executive actors may also prompt
legislative attention.
2. Clemency to Correct Sentencing Policy Errors
It is also true that clemency grants may be theoretically justified to
correct the problem of our national addiction to incarceration. There
is no dispute that America today is plagued by its mass
incarceration.84 Some scholars trace this emphasis on incarceration
back to Barry Goldwater’s 1964 Presidential campaign,85 while
2003), http://www.chron.com/news/houston-texas/article/Judges-criticize-Court-of-Criminal-Appeals2094712.php.
81. Id.
82. Id.
83. See, e.g., TEX. APPLESEED, FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE
PRACTICES (2000), http://www.texasappleseed.net/pdf/projects_fairDefense_fairref.pdf (identifying
systemic shortcomings).
84. Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass
Incarceration, 9 OHIO ST. J. CRIM. L. 133 (2011) (“That the last several decades have seen an explosion
of Americans’ reliance on imprisonment as a penal sanction is unquestioned. So vast has this expansion
been that the term ‘mass incarceration’ has entered scholarly vocabulary as a way of describing this
phenomenon.” (footnote omitted)).
85. Michael A. Simons, Sense and Sentencing: Our Imprisonment Epidemic, 25 J. CIV. RTS. &
ECON. DEV. 153, 158 (2010) (“In 1964, in the face of rising crime rates, presidential candidate Barry
Goldwater made being ‘tough on crime’ a national issue. Although Goldwater did not win the election,

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others point to President Nixon’s rhetoric of the 1970s, both of which
placed great emphasis upon the danger of criminals and the need to
be tough on crime.86 In any event, there is consensus that beginning
around 1980, penal policy in America shifted dramatically.87 Prison
systems moved away from an emphasis upon preventing future
criminal activity to incapacitating criminals through prolonged
detention.88 Since the 1970s, when a perceived spike in the crime rate
prompted politicians to pursue tough-on-crime policies,89 the
American prison population has grown exponentially.90 Moreover,
between 1970 and today, several changes in the American criminal
justice system converged to generate our status as the world’s leading
incarcerator: the introduction of mandatory minimums and much
longer average prison sentences; the passage of “three-strikes”
legislation which has created a pool of inmates serving life sentences;
legislation in many states eliminating parole;91 and the expansion of
what constitutes criminal behavior.92 As is now apparent, the longterm consequences of enacting draconian sentencing policies have
been tremendous: we are now a nation identified by its mass
incarceration, and our incarceration habits are incredibly expensive.
The Supreme Court’s 2011 decision in Brown v. Plata,93 requiring
the reduction of California’s prison population, has brought
mainstream media attention to the blight of America’s over-reliance
his campaign tactic changed the politics of crime on the national stage.”).
86. Anthony C. Thompson, Unlocking Democracy: Examining the Collateral Consequences of Mass
Incarceration on Black Political Power, 54 HOW. L.J. 587, 619–20 (2010) (describing Nixon’s toughon-crime platform and its impact upon the African-American community).
87. See Clear & Austin, supra note 22, at 312.
88. Chase Riveland, Prison Management Trends, 1975–2025, 26 CRIME & JUST. 163, 176–79 (1999)
(discussing the shift away from rehabilitative model in 1974).
89. THE JFA INSTITUTE, UNLOCKING AMERICA: WHY AND HOW TO REDUCE AMERICA’S PRISON
POPULATION 5–6 (2007).
90. Id. In 1970, there were less than 200,000 people in prison; by 2006, there were approximately
1.6 million people in prison. Id. at 3. For a visual of this growth from 1980 to 2009, see Key Facts at a
Glance, BUREAU JUST. STAT., http://bjs.ojp.usdoj.gov/content/glance/corr2.cfm (last modified Feb. 23,
2012).
91. Adam Gershowitz, An Informational Approach to the Mass Incarceration Problem, 40 ARIZ. ST.
L.J. 47, 54-57 (2008) (discussing these and other causes).
92. For example, over the last three decades there has been an explosion in the volume of
misdemeanor cases nationwide. See MINOR CRIMES, MASSIVE WASTE, supra note 68, at 11; Roberts,
supra note 68, at 281.
93. Brown v. Plata, 131 S. Ct. 1910 (2011).

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on incarceration. As Justice Kennedy’s opinion in Plata described,
California’s prison system currently houses almost twice the inmates
for which its facilities were designed.94 As a result, “as many as 200
prisoners may live in a gymnasium, monitored by as few as two or
three correctional officers,” while “[a]s many as 54 prisoners may
share a single toilet.”95 Prisoners face increased exposure to
infectious disease;96 suicidal inmates are housed in “telephone-booth
sized cages without toilets” while awaiting a treatment bed;97 and the
“[c]ramped conditions promote unrest and violence, making it
difficult for prison officials to monitor and control the prison
population.”98 Because of this unsafe and chaotic environment, the
prison system cannot hire and retain adequate staff with appropriate
training.99 In 2006, four years before the Supreme Court reviewed
California’s prison conditions, Governor Arnold Schwarzenegger
declared a state of emergency in the state prison system, explaining
that “immediate action” was “necessary to prevent death and harm
caused by California’s severe prison overcrowding.”100
While California’s prison crisis is “exceptional,”101 the state’s
appetite for incarceration is by no means unique. To the contrary,
almost every state in the nation faces similar problems regarding
prison costs and overcrowding.102 Alabama’s prison system holds
almost twice the inmates for which its facilities were designed, while
Delaware, Illinois, North Dakota, Massachusetts, and Hawaii all have
prison capacity rates hovering around 150%.103 Other states are
94. Id. at 1923.
95. Id. at 1924.
96. Id.
97. Id.
98. Id. at 1933.
99. Plata, 131 S. Ct. at 1927 (“Prisons were unable to retain sufficient numbers of competent
medical staff and would ‘hire any doctor who had “a license, a pulse and a pair of shoes.”’” (citations
omitted)).
100. Id. at 1924.
101. Id. at 1923.
102. See, e.g., Charlie Savage, Trend to Lighten Harsh Sentences Catches On in Conservative States,
N.Y. TIMES, Aug. 13, 2011, at A14 (discussing national issue of prison overcrowding and states’
increasing willingness to explore alternatives to incarceration).
103. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, BULLETIN: PRISONERS IN 2009 (2010),
available at http://www.bjs.gov/content/pub/pdf/p09.pdf (based on custody population as a percentage
of lowest capacity).

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exploring measures such as early release and electronic monitoring in
order to stave off prison overcrowding.104
As the Plata Court described, this kind of prison overcrowding is
not simply a matter of inconvenience for inmates who are forced to
live in cramped quarters. Rather, overcrowding leads to the spread of
infectious disease; causes prisoner unrest and violence; exacerbates
mental illness; deprives inmates of timely access to emergency
medical services; and renders the prison unable to hire and retain
adequate staff. Indeed, as the Plata Court held, these conditions are
“cruel and unusual.”105
At the same time, prison overcrowding is incredibly expensive.106
On average, states spend approximately $22,000 per inmate
annually.107 Massachusetts spends more than $37,000 per inmate,
while Alabama spends only $8,000 per inmate annually.108 As the
rate of incarceration has increased over time, state prison
expenditures have ballooned. In 2008, Pennsylvania spent 1.6 billion
dollars on prisons,109 while California spends more than four billion
dollars annually on its prison expenses.110 Moreover, these figures do
not reflect the opportunity cost of mass incarceration. States have a
finite amount of money to spend each year; when prison costs are
excessive, those costs erode the states’ ability to spend money on
education, infrastructure, courts, and other public services. For
104. Natasha Alladina, Note, The Use of Electronic Monitoring in the Alaska Criminal Justice
System: A Practical Yet Incomplete Alternative to Incarceration, 28 ALASKA L. REV. 125, 126 (2011);
Tom Barnes, State Hopes New Prisons, Early Release Cut Crowding, PITTSBURGH POST-GAZETTE (Oct.
27, 2008), http://www.post-gazette.com/pg08301/923163-85.stm.
105. U.S. CONST. amend. VIII; Brown v. Plata, 131 S. Ct. 1910, 1910 (2011).
106. Ironically, while it is expensive to incarcerate individuals, most states do not spend what they
should in order to provide inmates with substance abuse treatment, mental health services, educational
opportunities and other resources known to foster re-entry into society and to reduce recidivism. For
example, Alabama has the fourth highest rate of incarceration in the nation, and its prisons are operating
at 200% capacity. Yet, the state spends well below the national average per inmate. See JAMES J.
STEPHAN, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: STATE PRISON EXPENDITURES, 2001 (2004),
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/spe01.pdf; Corrections Statistics by State, NAT’L
INST. CORR., http://nicic.gov/StateStats/ (last visited Feb. 8, 2012).
107. STEPHAN, supra note 106, at 1.
108. Id.
109. Jeff Hawkes, Recidivism: The Point of No Return, INTELLIGENCER J., May 1, 2008, at B1,
available at
http://lancasteronline.com/article/local/220700_Recidivism—The-point-of-no-return.html.
110. STEPHAN, supra note 106, at 2.

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example, Alabama’s prison expenditures increased by nearly 45%
between 2000 and 2004, while its budget for schools increased only
7.5%.111 Collectively, the United States spends $70 billion a year to
incarcerate its more than two million prisoners.112
As Professors Clear and Austin have described, “[T]he size of a
prison population is completely determined by two factors: how
many people go to prison and how long they stay.”113 Accordingly,
there are only two ways to reduce a prison population: reduce the
number of people who enter prison or shorten the length of their
stay.114 State legislative and judicial bodies have responded in recent
years to this mass incarceration epidemic, and state executive actors
should too. For example, in the last few years, Texas, Kansas,
Mississippi, South Carolina, Kentucky, and Ohio have all passed
bipartisan criminal justice reform legislation designed to reduce
prison populations and costs.115 These bills have mandated nonprison punishments for certain offenses and expanded the terms of
parole eligibility.116
State judges are also aware of burgeoning prison and corrections
expenses. Last year, Missouri’s state sentencing board began
providing state judges with the cost of a given punishment.117 As
judges consider what punishment to impose, they can take into
account the fiscal difference between, for example, incarceration and
probation.118 Judges and lawmakers are becoming increasingly aware
of the fact that “even if we get significant benefits from incarceration,
that comes at a significant cost.”119

111. Excessive
Sentences,
EQUAL
JUSTICE
INITIATIVE,
http://www.eji.org/eji/prisons/excessivesentences (last visited Feb. 8, 2012).
112. Editorial, Cutting Prison Costs is a Worthy Cause, WASH. POST (Apr. 17, 2011),
http://www.washingtonpost.com/opinions/cutting-prison-costs-is-a-worthycause/2011/04/13/AF4er6vD_story.html.
113. Clear & Austin, supra note 22, at 312.
114. Id.
115. See generally SMART REFORM IS POSSIBLE, supra note 16.
116. Id.
117. Monica Davey, Touching Off Debate, Missouri Tells Judges Costs of Sentences, N.Y. TIMES,
Sept. 18, 2010, at A1.
118. Id.
119. Id. (quoting law professor Douglas A. Berman).

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Executive clemency can provide yet another tool in dismantling
corrections policies that have led to years of prison expansion and
have drained the public fisc. As with clemency grants made in
recognition of failing defense systems, grants made in recognition of
ill-advised corrections policies need not be made on a systemic or
blanket basis. Rather, state executive actors should be cognizant of
the excessive sentences that have been imposed in the last few
decades, and when considering clemency applications, they should be
looking for cases where the inmate can safely re-enter society and
where taxpayer dollars can be saved at the same time.
Even if one accepts the proposition that state actors are justified in
granting clemency on error-correcting grounds, as I have argued in
this section, one may still query whether such a course of action is
politically viable. In the next sub-Part, I turn to that issue.
B. Robust Clemency Today is Politically Viable
In the last few years, and particularly in the wake of the 2008
economic decline, other scholars have noted that clemency has fallen
into virtual extinction and have argued for its revival, especially with
respect to discrete inmate populations. For example, scholars have
called for clemency with respect to women who were convicted of
murder when they acted in self-defense against their long-time
batterer;120 others have called for clemency regarding the thousands
of individuals serving long sentences for non-violent drug
offenses.121 In the wake of Graham v. Florida,122 some scholars have
called for clemency to commute the sentences of juveniles serving
life-without-parole sentences.123
120. See, e.g., Carol Jacobsen, Kammy Mizga, & Lynn D’Ori, Battered Women, Homicide
Convictions, and Sentencing: The Case for Clemency, 18 HASTINGS WOMEN’S L.J. 31 (2007); see also
Bridget B. Romero et al., The Missouri Battered Women’s Clemency Coalition: A Collaborative Effort
in Justice for Eleven Missouri Women, 23 ST. LOUIS U. PUB. L. REV. 193 (2004).
121. See generally Berman, supra note 10; Molly M. Gill, Clemency Today, Reform Tomorrow, 20
FED. SENT’G REP. 318 (2007), available at 2007 WL 5658936.
122. Graham v. Florida, 130 S. Ct. 2011 (2010) (holding life-without-parole sentence unconstitutional
for non-homicide juvenile offenders); see also supra note 50 and accompanying text.
123. See, e.g., Anthony C. Thompson, Clemency for Our Children, 32 CARDOZO L. REV. 2641
(2011).

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These proposals assume, either explicitly or implicitly, that
attempts to expand the use of clemency at the state level will meet a
hostile political climate.124
This assumption should not be surprising: decades of conventional
wisdom and mainstream press accounts present executive clemency
as “political suicide.”125 In 1992, then-Governor Clinton refused to
grant clemency to Arkansas death-row inmate, Rickey Ray Rector,
despite arguments that Rector was too mentally impaired to
understand his own pending execution.126 Clinton’s refusal to grant
clemency in Rector’s case was widely recognized as a political
decision, designed to stave off Republican criticism that he was soft
on crime.127 In 2010, California’s Governor Arnold Schwarzenegger
reversed the California Parole Board’s decision to free dozens of
inmates, and there was a political dynamic to the decision. Many of
the inmates whom the Board had recommended for clemency had not
been the “trigger-man” in homicide crimes; some of them had no
prior criminal record.128 Defense lawyers were not surprised by the
denial of clemency and explained that the “former governor used that
power to burnish a reputation as a hard-nosed law-and-order
governor.”129 In fact, when Governor Schwarzenegger commuted the
sentence of one inmate from sixteen to seven years under
circumstances that seemed blatantly grounded in favoritism,
California Republicans issued a statement rebuking the Governor—

124. See Barkow, supra note 37, at 153 (“Politicians remain afraid of soft-on-crime accusations or
facing a Willie Horton-style advertisement should an individual on the receiving end of a pardon or
commutation go on to commit another crime.”); Thompson, supra note 123, at 2699–700 (describing
clemency as a political act with political consequences).
125. Korengold, Noteboom, & Gurwitch, supra note 11, at 363–65 (discussing the “political suicide”
issue); see also LaVonda N. Reed-Huff, Offensive Political Speech from the 1970s to 2008: A
Broadcaster’s Moral Choice, 8 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 241, 262–64 (2008)
(describing the Willie Horton ad campaign and its portrayal of Presidential Candidate Dukakis as softon-crime because of a Massachusetts prison furlough policy).
126. Peter Applebome, The 1992 Campaign: Death Penalty; Arkansas Execution Raises Questions on
Governor’s Politics, N.Y. TIMES, Jan. 25, 1992, § 1, at 18.
127. Id.
128. Jack Dolan, Schwarzenegger Was Inconsistent on Clemency, L.A. TIMES, Jan. 16, 2011, at A1.
129. Id.

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not for nepotism, but for “undermin[ing] the party’s message of
being tough on crime while advocating for the rights of victims.”130
One may ask then: why would any state actor want to take an
enormous political risk by reviving the use of clemency, as I have
suggested? In this subsection, I suggest several reasons why the
rhetoric around clemency may overstate the risk associated with
politicians using their clemency power today.
To begin, there is very little empirical research on clemency
grants, and most of the work that has been done has focused on
defendant characteristics that may affect clemency decisions, such as
age, sex, and state of sentencing.131 An even smaller subset of
research looks at the nexus between political factors, such as whether
a governor faces reelection, and grants of clemency.132 The little data
that examines this nexus, though, suggests that the connection may
be more tenuous than the rhetoric suggests.
Professor Heise conducted an empirical study in 2003 that was the
first to examine the effect that political factors, structural factors, and
defendant characteristics had on clemency grants over several
decades of clemency decisions.133 Contrary to prevailing assumptions
about the politicization of clemency grants, none of the political
variables that Heise considered had a statistically significant impact
on state clemency grants.134 Heise leaves room for the possibility that
there is, in fact, a connection, but that the connection evades
empirical analysis and is instead idiosyncratic and case-specific.135
Still, Heise’s work undermines the idea that there is a powerful
connection between political variables, especially re-election
concerns, and clemency grants.

130. Tom Verdin, Schwarzenegger Clemency Denounced by California G.O.P., HUFFINGTON POST
(Mar. 20, 2011, 7:11 PM), http://www.huffingtonpost.com/2011/03/20/schwarzenegger-clemencyd_0_n_838179.html.
131. Heise, supra note 9, at 259–60.
132. Id. at 260–61.
133. Id. at 262.
134. Id. at 296 (“Unexpectedly, none of the political variables examined in this study achieved
statistical significance.”).
135. Id. at 296–97.

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Voter sentiments, as reflected in criminal decision-making and in
recent polls, further suggest that clemency grants today may not be
politically harmful. Since 1999, the number of death sentences has
dropped dramatically, from 277 in 1999 to 78 last year.136 A 2010
study conducted by the Lake Research Group found growing support
among voters for alternatives to the death penalty in murder cases.
Sixty-one percent of voters would choose a punishment other than
death for murder.137 Moreover, in death penalty states a majority of
voters said that a representative’s action to repeal the death penalty
would not impact their vote (38%) or would impact it favorably
(24%).138 These results are consistent with the earlier finding that
“the greatest concern among voters regarding the death penalty is the
danger that an innocent person may be executed.”139 These findings
reveal a very different set of voter beliefs than prevailed even a few
decades ago. Further, they may serve as a proxy for voter amenability
to clemency grants under the right circumstances.
There will always be political actors who will try to turn clemency
grants into a political opportunity. As a result, it is tempting to
conclude that our nation will never return to the model of state
clemency that prevailed in the first half of the twentieth century.
Such a conclusion, though, overlooks several changes, especially in
recent years, that have the potential to facilitate robust state
clemency.
First, there are recent examples of state actors who used their
clemency power in a meaningful way without suffering tremendous
political consequences. Professor Barkow cites Arkansas Governor
Mike Huckabee, Virginia Governor Tim Kaine, and Maryland
Governor Robert Ehrlich as examples of Governors who fit this
profile.140 This is not to say that their clemency actions were never
136. DEATH PENALTY INFO. CTR., Facts About the Death Penalty (updated Mar. 1, 2012),
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.
137. Poll Shows Growing Support for Alternatives to the Death Penalty; Capital Punishment Ranked
Lowest Among Budget Priorities, DEATH PENALTY INFO. CTR. (Nov. 16, 2010),
http://www.deathpenaltyinfo.org/pollresults#Press_Release.
138. Id.
139. Korengold, Noteboom, & Gurwich supra note 11, at 365.
140. Barkow, supra note 14, at 153.

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mentioned by their political opponents, but rather that their clemency
actions were not determinative of their political careers. During
Governor Huckabee’s bid for President in 2007, his opponents
criticized his numerous clemency grants,141 and, in particular, the fact
that he had supported the parole of a convicted rapist who was
subsequently convicted of raping and murdering a Missouri woman
within one year of his release.142 However, Huckabee made
numerous clemency grants during his first term as Governor in
Arkansas, 143 and he was reelected in that state twice. Moreover, his
decision to bow out of the Republican presidential primary most
likely had more to do with funding than any other factor, certainly
more than his clemency record.144 Finally, before he announced his
decision not to run for President in 2012, “[he] had been showing
strong poll numbers, among some of the strongest of his party’s
possible contenders.”145 If Huckabee was able to grant clemency to
more than a 1,000 people during his years as Governor and be a
serious contender in two presidential elections, perhaps the rhetoric
of clemency as political suicide is overblown.
One may say the same with respect to Governor Ehrlich and
Governor Kaine. While Governor, Ehrlich reversed the Maryland
trend of refusing clemency and was praised in the press for doing
so.146 The fact that he was a one-term governor in the state was most
141. Michael Luo, Romney Takes On a Rising Huckabee, Comparing Records, N.Y. TIMES, Dec. 18,
2007, at A26 (describing a Mitt Romney ad that criticized Huckabee’s 1033 commutations and
pardons).
142. Huckabee’s Role in Rapist’s Parole Comes Under Fresh Scrutiny, CNN POLITICS (Dec. 5,
2007),
http://articles.cnn.com/2007-12-05/politics/huckabee.dumond_1_mike-huckabee-arkansasgovernor-wayne-dumond?_s=PM:POLITICS.
143. Barkow, supra note 14, at 153.
144. Huckabee Bows to Inevitable, Ends G.O.P. Run, CNN POLITICS (Mar. 5, 2008),
http://articles.cnn.com/2008-03-05/politics/huckabee_1_mike-huckabee-gop-straw-poll-johnmccain?_s=PM:POLITICS (noting that Mike Huckabee raised nearly $13 million during his campaign
as compared to John McCain’s nearly $55 million and Mitt Romney’s $90 million).
145. Jim Rutenberg, After Hinting Otherwise, Huckabee Says He Won’t Run for President, N.Y.
TIMES, May 14, 2011, at A20.
146. See, e.g., Dan Rodricks, Clemency Cases: A Tale of Two Governors, BALTIMORE SUN, Apr. 25,
2010, at 25A (comparing current Governor O’Malley’s refusal to grant relief in several high-profile
cases with Ehrlich’s office making clemency a “priority); see also, Editorial, Mr. Ehrlich and Clemency,
WASH.
POST
(Aug.
27,
2006),
http://www.washingtonpost.com/wpdyn/content/article/2006/08/26/AR2006082600599.html (noting that his clemency practices had not
caused him “to be branded ‘soft on crime’”).

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likely because he was a Republican candidate in a state with twice as
many registered Democrats as Republicans rather than a reflection of
his clemency practices.147 Governor Kaine also used his clemency
power vigorously,148 and today polls suggest that Kaine will be a
strong contender in the 2012 Virginia Senate race.149
More recently, Ohio Governor John Kasich and Oregon Governor
John Kitzhaber have made several high-profile clemency decisions
within their first year in office. In November of 2011, Governor
Kitzhaber, a Democrat, stopped a pending execution and declared a
moratorium on the death penalty in Oregon.150 Describing his action
as only the grant of a “temporary reprieve,” Kitzhaber asked the state
legislature to bring potential reforms to the 2013 legislative
session.151 Governor Kasich, a Republican who also came to office in
2010, has already commuted two death sentences to life-withoutparole. In one case, Kasich explained there was “no doubt that the
defendant played a significant, material role in this heinous crime,
but precise details of that role are frustratingly unclear to the point
that Ohio shouldn’t deliver the ultimate penalty in this case.”152 In the
second case, Kasich cited the defendant’s young age at the time of
the murder and his “brutally abusive upbringing.”153 In a non-capital
case, Kasich granted clemency to a mother who had fraudulently
enrolled her children in a neighboring school district.154 By reducing
147. See Julie Bykowicz, Annie Linskey, & Liz Kay, O’Malley Defeats Ehrlich, BALTIMORE SUN
(Nov. 3, 2010), http://articles.baltimoresun.com/2010-11-03/news/bs-md-governor-election-results20101102_1_democrat-o-malley-katie-curran-o-malley-martin-o-malley.
148. Barkow, supra note 14, at 153.
149. See Dead Heat In Virginia Senate Race, Quinnipiac University Poll Finds; Voters Split On
Obama
Job
Approval,
But
Like
Him,
QUINNIPIAC
U.
(June
30,
2011),
http://www.quinnipiac.edu/x5822.xml?ReleaseID=1621.
150. William Yardley, Oregon’s Governor Says He Will Not Allow Executions, N.Y. TIMES, Nov. 23,
2011, at A14.
151. Id.
152. Alan Johnson, Kasich Commutes Convicted Killer’s Sentence to Life Without Parole,
COLUMBUS DISPATCH (June 8, 2011), http://www.dispatch.com/content/stories/local/2011/06/08/kasichspares-life-of-convicted-double-murderer.html (internal quotation marks omitted).
153. Alan Johnson, Kasich Spares Killer’s Life, COLUMBUS DISPATCH (Sept. 27, 2011),
http://www.dispatch.com/content/stories/local/2011/09/27/kasich-spares-killers-life.html
(internal
quotation marks omitted).
154. Alan Johnson, Kasich Reduces Sentence for Akron Mom in School-Residency Case, COLUMBUS
DISPATCH (Sept. 7, 2011), http://www.dispatch.com/content/stories/local/2011/09/07/akron-momwilliams-bolar.html.

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her sentence and imposing several conditions on the mother, Kasich
stated that he was giving the mother “a second chance,” not “a
pass.”155 Kasich’s latter move was especially courageous because the
Ohio Parole Board, which makes recommendations to the Governor
regarding clemency, had issued a unanimous recommendation to
deny clemency in the mother’s case.156 The Parole Board said that the
mother was “deceitful” and faced the same problems as “any other
working parent.”157 Nonetheless, Kasich found her sentence
excessive and reduced her felony conviction to a misdemeanor.158
It is too early to determine whether Kasich and Kitzhaber will
suffer long-term political consequences from their clemency
decisions, but to date the fallout has not been significant. 159
Kitzhaber is in a solidly Democratic state, and he was transparent
about his position on the death penalty in his most recent run for
Governor.160 If Oregon lawmakers study the death penalty question
and assess its costs and benefits for taxpayers, perhaps they will
follow the path of New Jersey, New Mexico and Illinois, all of which
have repealed the death penalty in recent years. As for Kasich,
Professor Doug Berman, an expert on sentencing policy, has praised
the Governor’s “already impressive clemency record,” noting that he
has “made more profound and effective use of his state clemency
authority in just the last three months than US President Barack
155. Id. (internal quotation marks omitted).
156. Id.
157. Id. (internal quotation marks omitted).
158. Id.
159. To be sure, there have been early critics of the clemency decisions, as both Governors
undoubtedly knew there would be. One prosecutor in the state said of the Governor’s decision: “It is
arrogant and presumptuous for an elected official, up to and including the governor, to say, `I don’t care
with the voters say, I don’t care what the courts say,’ and impose his own opinion.” Jonathan J. Cooper,
John Kitzhaber, Oregon Governor, Imposes Moratorium On Death Penalty For Rest Of His Term,
HUFFINGTON POST (Nov. 22, 2011), http://www.huffingtonpost.com/2011/11/23/death-penalty-banoregon_n_1109350.html. It is worth noting that this objection argues too much in that it represents
opposition to any acts of gubernatorial clemency, something which the Oregon Constitution authorizes.
See OR. CONST. art. V, § 14. It is also worth noting that there have been very positive reactions to these
clemency grants in the mainstream press. See, e.g., Mark Osler, Oregon’s Death Penalty Halt Merciful
and Right, CNN OPINION (Nov. 25, 2011), http://articles.cnn.com/2011-11-25/opinion/opinion_osleroregon-death-penalty_1_death-penalty-john-kitzhaber-reprieve?_s=PM:OPINION.
160. See Eric Nisley & Walt Beglau, Death Penalty: Respecting the Will of Voters, OREGONIAN (Dec.
3, 2011), http://www.oregonlive.com/opinion/index.ssf/2011/12/death_penality_respecting_the.html
(criticizing the Governor’s decision but noting that his position had never been a secret).

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Obama has in over the last three years.”161 Kasich’s approach may be
more sustainable in the long run to the extent that it is perceived as
judicious. In any event, the actions of these Governors from both
sides of the political aisle stand as modern examples of robust state
clemency.
Even more recently, outgoing Mississippi Governor Haley
Barbour granted clemency to 215 individuals, including twenty-six
inmates who were released from prison.162 In Barbour’s case the
public outcry was pronounced, and there are lawsuits pending today
that challenge the clemency grants.163 Yet, the Barbour example need
not discredit the notion that clemency grants are politically doable
today. Rather, the Barbour example provides important information
about how clemency grants should be made. Specifically, boards,
rather than individual governors, are better suited to making these
decisions;164 clemency decisions and the reasoning behind them
should be transparent; and executive actors need to anticipate and
address concerns of the public as they announce their clemency
decisions.165 In sum, the Barbour experience with clemency does not
undermine the claim that robust clemency is politically doable; it

161. Douglas Berman, Sentencing Law and Policy, Following Ohio Parole Board’s Recommendation,
Gov Kasich Commutes Another Murderer’s Death Sentence, SENTENCING LAW AND POLICY (Sept. 27,
2011)
http://sentencing.typepad.com/sentencing_law_and_policy/2011/09/following-ohio-paroleboards-recommendation-gov-kasich-commutes-another-murderers-death-sentence.html.
162. Haley Barbour, Statement of Former Gov. Haley Barbour on Clemency,
GOVERNORBARBOUR.COM
(Jan.
13,
2011),
http://www.governorbarbour.com/news/2011/dec/1.13barbourclemencystatement.html.
163. See, e.g., Mary Capps, Barbour’s Blatant Disregard for the Safety of Women, SUN HERALD
(Biloxi, Miss.), Jan. 20, 2012, available at 2012 WLNR 1285237 (describing one particular source of
anger about the pardons in letter to editor); Miss. High Court Takes Ex-gov Pardons Case, DELTA
DEMOCRAT TIMES (Greenville, Miss.), Feb.1, 2012, available at 2012 WLNR 2337072 (describing legal
challenge to Barbour clemency decisions).
164. In the wake of the Barbour pardons, lawmakers in Mississippi are examining potential reforms to
the state’s current clemency process which is left to the Governor’s sole discretion. See Phil West,
Changes Due for Pardons—Bryant, Lawmakers Seek to Reduce Governor’s Authority, MEMPHIS COM.
APPEAL, Jan. 13, 2012, available at 2012 WLNR 870274; see also infra Part III (discussing the
rationale for a clemency board).
165. In Gov. Barbour’s case, he eloquently explained his decision to grant clemency in 215 cases, but
his explanation came after his announcement of the grants. See Haley Barbour, Why I Released 26
Prisoners, WASH. POST, Jan. 18, 2012, http://www.washingtonpost.com/opinions/haley-barbour-on-hispardons-of-mississippi-prisoners/2012/01/17/gIQAtOuG9P_story.html.

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highlights the pitfalls to avoid when making these important
decisions.
Above and beyond actual cases of recent clemency grants, it is
important to note that in recent years the entire political climate has
changed, ushering in a host of reform measures that also would have
been labeled “soft on crime” in another period.166 Specifically, the
economic downturn has forced even states with the toughest record
on criminal sanctions to reconsider sentencing policy. In 2007, Texas
faced a projected prison population increase of up to 17,000 inmates
within five years.167 Rather than spend the two billion dollars that
would have been necessary to accommodate that population increase,
the state spent a fraction of that figure establishing diversion and
community based treatment programs.168 Newt Gingrich, a contender
for the Republican presidential ticket, recently established the Right
on Crime organization, articulating the view that the criminal justice
status quo is not sustainable and that conservatives can and should
lead criminal justice reform efforts.169 These are significant political
changes, even in a very short period of time, and they are consistent
with contemporary voter polls that suggest taxpayers no longer want
to foot the bill for an ever-expanding prison population.170 To the
extent that there is newfound, bipartisan support for holistic criminal
justice reform, including decarceration efforts, one may view that
support as a proxy for the viability of clemency today, as well.

166. David Cole, Turning the Corner on Mass Incarceration?, 9 OHIO ST. J. CRIM. L. 27 (2011)
(discussing recent signs of progress and political trend away from “tough on crime” positions). In recent
years, there has been increasing bipartisan support for systemic reform. See, e.g., Shane D’Aprile,
Gingrich Backs NAACP Effort on Criminal Justice Reform, HILL (Apr. 7, 2011, 9:35 AM),
http://thehill.com/blogs/ballot-box/gop-presidential-primary/154549-gingrich-backs-naacp-effort-oncriminal-justice-reform (describing the Republican’s support for the NAACP criminal justice reform
proposals); Statement of Principles, RIGHT ON CRIME, http://www.rightoncrime.com/the-conservativecase-for-reform/statement-of-principles/ (last visited Feb. 8, 2012).
167. THE PEW CTR. ON THE STATES, PRISON COUNT 2010, at 3 (2010),
http://www.pewcenteronthestates.org/uploadedFiles/Prison_Count_2010.pdf.
168. Id.; see also AM. CIV. LIB. UNION, supra note 16 (highlighting Texas reforms).
169. See generally Statement of Principles, supra note 166; Steve Yoder, The GOP, “Tough on
Crime”
No
More?,
SALON
(Nov.
7,
2011),
http://www.salon.com/2011/11/07/the_gop_tough_on_crime_no_more/.
170. See, e.g., Jack Dolan, Californians Would Rather Ease Penalties Than Pay for More Prisons,
L.A. TIMES, July 21, 2011, http://articles.latimes.com/2011/jul/21/local/la-me-poll-prisons-20110721.

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Finally, the Supreme Court’s decision in Plata last term has
provided state executive actors with an important shield if they
choose to revive state clemency in this time of crisis.171 That is, Plata
made clear that systemic lawsuits challenging prison overcrowding
and conditions of confinement have more than a chance of success—
they have an ally in the Court.172 State executive actors can use this
to their advantage should they choose to pursue a methodical and
judicious clemency agenda. In some states, for example, particularly
those that have experienced prison litigation, executive actors can
frame the question as who chooses who will leave prison before the
end of their sentence rather than whether any inmates will do so.
Framed this way, voters may prefer that an elected state official (or
an appointed state board) do the choosing rather than a remote
federal judge.
For all of these reasons, clemency in a time of crisis not only is
theoretically defensible, but it may be politically doable—even
advantageous—under the right circumstances.
III. QUESTIONS OF IMPLEMENTATION
Having made the theoretical and practical case for clemency today,
in this Part of the Article I address questions of implementation,
specifically: 1) who should make clemency decisions? and 2) who
should benefit from clemency grants?
A. Who Should Make Clemency Decisions?
Who—or what body of people—should render clemency
decisions? As noted at the outset of this Article, states vary in their
clemency protocols: in fifteen states the Governor has the sole
decision-making authority; in eight states the Governor must have the
recommendation of a board or panel; in ten states, the Governor may
receive a non-binding recommendation from a board; and in five

171. Brown v. Plata, 131 S. Ct. 1910 (2011).
172. Id.

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states a board alone makes clemency decisions.173 Alexander
Hamilton advised that a sole executive was best suited to make
clemency decisions on the theory that “a single man of prudence and
good sense is better fitted, in delicate conjunctures, to balance the
motives which may plead for and against the remission of the
punishment, than any numerous body whatever.”174 And yet there is
broad academic support for the model of an administrative clemency
board.175 Professor Heise’s empirical work demonstrated that “the
manner in which states structure clemency decision-making authority
matters.”176 Specifically, boards are more likely to generate favorable
clemency decisions.177 This should not be surprising given the degree
to which politicians perceive clemency grants as politically risky—
even if that perception is exaggerated. Boards can provide some
protection from that political risk.
Yet, boards in their own right are not a perfect solution. If they are
too large, the sense of responsibility experienced by any single board
member may be too diffuse, and decisions may be made with less
than full care and attention.178 Moreover, boards require procedural
safeguards in order to function effectively.179
Colorado offers a good case in point. In 2006, Colorado enacted a
statute that precluded life-without-parole sentences for juvenile
173. Clemency, supra note 43.
174. THE FEDERALIST NO. 74 (Alexander Hamilton).
175. Heise, supra note 9, at 301; see also MARGARET COLGATE LOVE, EXECUTIVE SUMMARY OF
RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A STATE-BY-STATE
RESOURCE
GUIDE
5–6
(2005),
available
at
http://www.sentencingproject.org/doc/File/Collateral%20Consequences/execsumm.pdf (noting that
states that have issued most pardons have a board protected from political process); Daniel T. Kobil,
How to Grant Clemency in Unforgiving Times, 31 CAP. U. L. REV. 219, 228–32 (despite flaws,
clemency boards still more desirable alternative); Daniel T. Kobil, The Quality of Mercy Strained:
Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 622–36 (describing the value of a
clemency commission in its ideal form).
176. Heise, supra note 9, at 301.
177. Id.; see also Elizabeth Rapaport, The Georgia Immigration Pardons: A Case Study in Mass
Clemency, 13 FED. SENT’G REP. 184 (2001) (describing a historical example of a clemency board in
action).
178. See generally Adam Gershowitz, The Diffusion of Responsibility in Capital Clemency, 17 J.L. &
POL. 669 (2001).
179. Victoria J. Palacios, Faith in Fantasy: The Supreme Court Reliance on Commutation to Ensure
Justice in Death Penalty Cases, 49 VAND. L. REV. 311, 370–71 (1996) (describing a citizen selection
board).

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offenders, but the law did not apply retroactively.180 As a result,
forty-eight juvenile offenders in Colorado were left serving lifewithout-parole sentences.181 In 2007 Colorado Governor Bill Ritter
formed the state’s Juvenile Clemency Board by executive order.182
The Board was tasked with reviewing clemency and commutation
requests by juvenile inmates who were tried as adults and sentenced
to state prison.183 The Juvenile Clemency Board would have been the
optimal vehicle for consideration of those forty-eight life-withoutparole cases, and yet more than three years later, that Board has
considered twelve juvenile life-without-parole cases and it has
granted to clemency to none of them.184
This inefficacy can be attributed to several factors: the lawenforcement-heavy composition of the Board, the total lack of
transparency in the Board’s process and decision-making, and the
fact that, at the end of the day, the Governor retains the sole authority
to render clemency decisions.185 Because the Juvenile Clemency
Board has proven so ineffective at addressing the juvenile lifewithout-parole issues, state lawmakers plan to ask the current
Governor John Hickenlooper to assess whether the Juvenile
Clemency Board is meeting its mandate.186 In any event, the
Colorado Juvenile Clemency Board demonstrates that a board is a
necessary, but not sufficient, condition to an effective and fair
clemency system.

180. Juan Espinosa, Juvenile “Lifers” Afraid to Hope, PUEBLO CHIEFTAIN (Colorado), Apr. 3, 2011,
http://www.chieftain.com/news/local/juvenile-lifers-afraid-to-hope/article_20718c28-5dac-11e0-a031001cc4c03286.html.
181. Id.
182. John C. Ensslin, Board to Review Cases of Teens Sent to Prison, ROCKY MOUNTAIN NEWS, Aug.
30, 2007, http://m.rockymountainnews.com/news/2007/Aug/30/board-to-review-cases-of-teens-sent-toprison.
183. Id.
184. Espinosa, supra note 180.
185. Gene Davis, Frustration Over Juvenile Clemency Board, DENVER DAILY NEWS (July 30, 2009),
http://www.statebillnews.com/2009/07/frustration-over-juvenile-clemency-board/; Ensslin, supra note
182.
186. Patrick Malone, Bill to Adjust Juvenile Life Term Dies, PUEBLO CHIEFTAIN (Apr. 7, 2011),
http://www.chieftain.com/news/local/bill-to-adjust-juvenile-life-terms-dies/article_84fa7a90-60d3-11e087af-001cc4c002e0.html.

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Rather, certain procedural safeguards are needed.187 First, the
composition of the Board should be representative of the public
rather than heavily favoring the perspective of the law-enforcement
community. Voices from the law-enforcement community are
important, but they should be tempered by the voices of, for example,
those who advocate for holistic criminal justice reform and effective
re-entry. Second, the Board should reflect diversity in race, ethnicity
and gender.188 Third, the Board should be operating under clear and
specific guidelines as to clemency decisions, and those guidelines
should be made transparent, especially to inmates applying for
clemency. The criteria may need to vary by jurisdiction, but some
common features should be: the extent to which there is doubt about
the actual innocence of the applicant; the extent to which the inmate
is serving a sentence disproportionate to what co-defendants or
similarly situated defendants are serving; the extent to which an
applicant has rehabilitated himself; the extent to which the inmate has
been a resource to others within the prison system; the extent to
which the inmate is suffering from mental or physical health
problems that make the current sentence excessive; and the extent to
which the inmate was deprived of his right to the effective assistance
of counsel.189 Scholars have recognized that clemency boards are not
perfect, but I join the camp of those who think such boards are the
best hope for robust clemency at the state level.
B. Who Should Benefit from Clemency?
As to the question of who should benefit from clemency grants,
the short answer is: it depends on the jurisdiction. In this Article I
have conceived of clemency primarily in its error-correcting

187. See, e.g., Stephen E. Silverman, There is Nothing Certain Like Death in Texas: States Executive
Clemency Boards Turn a Deaf Ear to Death Row Inmates’ Last Appeals, 37 ARIZ. L. REV. 375, 395–97
(suggesting several procedural safeguards); see also Alyson Dinsmore, Comment: Clemency in Capital
Cases: The Need to Ensure Meaningful Review, 49 UCLA L. REV. 1825, 1853–57 (2002) (discussing
additional safeguards and their introduction through statute).
188. Palacios, supra note 179, at 371.
189. See Cathleen Burnett, The Failed Failsafe: The Politics of Executive Clemency, 8 TEX. J. C.L. &
C.R. 191, 192 (2003) (listing reasons for granting clemency); Ridolfi & Gordon, supra note 1, at 3.

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capacity. Accordingly, clemency should be deployed to correct errors
that are specific to a given jurisdiction.
For example, as I discussed in Part I of this Article, Florida houses
the majority of inmates who were juvenile non-homicide offenders
and who are now serving life-without-parole sentences.190 Those
sentences are now unconstitutional, and yet the legislature has not
been able to pass a law that would provide an alternative sentence to
these inmates. Nor is a life sentence, with parole, available under
state law.191 This is the kind of glaring error that clemency can
readily address. The Board (on which the Governor sits in Florida)
need not simply release these inmates. Instead it could look to other
jurisdictions that have legislation regarding the sentencing of
juveniles and commute the sentences to a term of years after which
the juvenile offender becomes parole-eligible. Unless and until the
inmate is equipped for parole, it need not be granted, but the option
should be available. If presented well to the public, this act would not
be political suicide. Rather, it can be framed (accurately) as an
executive agency bringing the state into compliance with a Supreme
Court mandate.
In California, a different type of error-correction may be
warranted. California’s death row houses more than 700 inmates—
making it by far the largest death row in the nation and almost twice
the size of the next biggest death row, in Florida.192 At the same time,
though, California has only executed thirteen inmates since the
Supreme Court’s reauthorization of the death penalty.193 Housing
someone on death row, as opposed to housing them in a maximum
190. Graham v. Florida, 130 S. Ct. 2011, 2023 (2010) (citing P. ANNINO, D. RASMUSSEN & C. RICE,
JUVENILE LIFE WITHOUT PAROLE FOR NON-HOMICIDE OFFENSES: FLORIDA COMPARED TO NATION
(2009), available at http://www.law.fsu.edu/faculty/profiles/annino/Report_juvenile_lwop_092009.pdf).
The report estimated that there were 109 juvenile non-homicide offenders serving a life-without-parole
sentence nationwide, seventy-seven of whom were in Florida.
191. See supra note 51 and accompanying text.
192. Death
Row
Inmates
by
State,
DEATH
PENALTY
INFO.
CTR.,
http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year (last visited Feb. 24,
2012).
193. Searchable
Execution
Database,
DEATH
PENALTY
INFO.
CTR.,
http://www.deathpenaltyinfo.org/viewsexecutions?exec_name_1=&sex=All&state%5B%5D=CA&sex_1=All&federal=All&foreigner=All&ju
venile=All&volunteer=All (last visited Feb. 8, 2012).

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security prison for a non-capital crime, is incredibly expensive—to
say nothing of the costs of legal representation in a capital case as
opposed to a non-capital case.194 A recent California study estimates
that it costs an additional $90,000 per year to house an inmate on
death row instead of in a maximum security facility where an inmate
serving life-without-parole would typically be housed. Given the size
of California’s death row, the study estimates that commuting
California’s death row population to life-without-parole sentences
would save the state $170 million annually.195 Pennsylvania is in a
similar position. With 219 inmates on death row, the state has the
fourth largest death row in the nation.196 Yet it has only executed
three people since 1976.197 In jurisdictions like California and
Pennsylvania maintaining large death rows may no longer be
feasible—or justifiable to taxpayers. By commuting these sentences
to life-without-parole, state actors can remedy the error of excessive
sentences while freeing up millions of tax dollars.
While some problems are nationwide—like access to counsel and
overreliance on incarceration—manifestations of these problems will
vary from state to state. In other states, classes of offenders may not
immediately come to mind, but instead, clemency should be pursued
on several fronts: for those who may have been the victim of racial
discrimination in sentencing; for those who have demonstrated
significant rehabilitation; for those who suffered tremendous abuse
that may explain, if not excuse, their actions; and for those who are
elderly and in poor health. When executive actors exercise their
clemency authority, they should take these regional differences and
priorities into account.

194. Charles Riley, One California Budget Fix: Abolish Death Row, CNN MONEY (June 20, 2011),
http://money.cnn.com/2011/06/20/news/economy/california_death_penalty/index.htm.
195. DEATH
PENALTY
INFO.
CTR.,
California
Cost
Study
2011,
http://www.deathpenaltyinfo.org/california-cost-study-2011 (last visited Feb. 8, 2012).
196. DEATH PENALTY INFO. CTR., FACTS ABOUT THE DEATH PENALTY (2012),
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.
197. Id.

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C. Public Education
Finally, a word about public education is in order. For a revitalized
clemency model to be viable, the public needs to be aware of both the
fiscal and social costs of current corrections policies. To some extent,
this public education process is already underway. As I discussed in
Part II of this Article, the recession has forced some changes in
criminal justice policy. In addition, the Plata decision has been
covered widely by national newspapers, drawing attention to our
nation’s mass incarceration epidemic. Yet, the promising bipartisan
support for significant criminal justice reform has not received the
media attention that it deserves.
Advocates of criminal justice reform, including clemency reform,
should pursue a localized education plan that responds to pressing
voter concerns. For example, the California state budget crisis is due
to many factors, but it is related to the state’s last three decades of
criminalization and prison expansion.198 California Governor Jerry
Brown’s proposed 2012-2013 budget allocated roughly the same
amount of funding for higher education as it did for corrections.199
While California voters are indeed vocally angry about the state’s
slashing of public education funds, 200 voters may not know that only
one decade ago, California allocated more than twice as much

198. California is in the midst of implementing a plan to reduce its prison population. Richard Winton
& Andrew Blankstein, California Jails Receiving More State Prisoners Than Expected, L.A. TIMES,
Nov. 16, 2011, http://articles.latimes.com/2011/nov/16/local/la-me-11-15-jails-20111116 (describing the
state’s “realignment” process under which state prisoners are being moved to county jails in order to
comply with a Supreme Court ordered prison population reduction). Even with the court-ordered
reduction, though, California’s prison population is at a historic high. JOSEPH M. HAYES, PUB. POLICY
INST. OF CAL., CALIFORNIA’S CHANGING PRISON POPULATION (2011), available at
http://www.ppic.org/content/pubs/jtf/JTF_PrisonsJTF.pdf (describing a 73% prison population increase
between 1990 and 2005).
199. CALIFORNIA DEP’T OF FIN., GOVERNOR’S BUDGET SUMMARY—2012–2013, at 19, available at
http://www.ebudget.ca.gov/pdf/BudgetSummary/SummaryCharts.pdf (showing 7.8% of expenditures
going toward corrections and 7.1% going to higher education).
200. See, e.g., Maria L. La Ganga & Carla Rivera, Students Protest at Several California Universities,
L.A. TIMES (Nov. 15, 2011), http://articles.latimes.com/2011/nov/15/local/la-me-college-occupy20111116 (describing college students’ protests regarding tuition increases and education cuts);
Anthony York & Nicholas Riccardi, Deeper Cuts to State Budget Expected, L.A. TIMES (Nov. 17,
2011), http://articles.latimes.com/2011/nov/17/local/la-me-state-budget-20111117 (describing parent
and teacher protests in response to education funding cuts).

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funding to higher education as it did to adult and youth corrections.201
Sentencing reformers need to make explicit the link between prison
expansion and education cuts. Only when the public is well-educated
about the costs of current corrections policies will citizens fully
understand the benefits, and admittedly, the risks,202 of reviving state
clemency.
CONCLUSION
In this Article I have discussed two of our nation’s most pressing
criminal justice failings: the ongoing indigent defense crisis and our
overreliance on incarceration. I have further suggested that state
actors can justify their robust use of clemency today in response to
these ongoing, systemic failures. By way of conclusion, I want to
mention two caveats. First, the fact that I have conceived of
clemency in its error-correcting capacity in this Article does not
mean that I view this as clemency’s exclusive role. Even if we were
to make effective representation available as a matter of course to
criminal defendants and even if we were to dramatically reduce our
reliance on incarceration, clemency would still have an important
place in our system—just as it did in when our Constitution was
drafted. Second, a revitalized and robust clemency power at the state
level cannot replace thoughtful, bipartisan legislative reforms
designed to address these criminal justice failings. States with truly
broken indigent defense systems need to begin with the basics: a
state-funded system that is independent of political and judicial
influence; workload limits that respect the demands of effective
representation; and resource parity between the defense and
prosecutorial functions. Likewise, our current reliance on
incarceration requires systemic reforms such as expanded bail and
parole opportunities; diversion and decriminalization; and a renewed
201. GOVERNOR’S BUDGET HIGHLIGHTS, 2000-2001, CAL. DEPT. OF FINANCE, at 83, available at
http://www.dof.ca.gov/budget/historical/2000-01/documents/Highlights00-01.pdf (showing corrections
expenditures as 5.8% of total expenditures and higher education as 11.5%).
202. With any proposed clemency plan, there is the risk that a released inmate will commit another
crime.

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emphasis on rehabilitation so that offenders are prepared to re-enter
society and avoid recidivism. Unless and until state legislatures take
up these measures, though, state actors are amply justified in using
clemency judiciously to correct errors that flow from these systemic
failures.

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