by Matt Barr

Should there ever be clemency on death row?

"Tookie" Williams, founder of the Crips, is on death row in California, and Gov. Schwarzenegger is considering clemency in advance (pedantry alert: one expects) of his scheduled execution Dec. 13. In prison, Williams has authored anti-gang children's books and has become a public advocate against gang violence. A good summary of his case and the issues currently surrounding it, beyond the characterization of skeptics of his death row conversion as "victims' loved ones and police officers, mostly," appears here.

I write not to argue for his execution or in favor of sparing him, but because this post of David Kopel's asks an interesting question: Should events subsequent to a capital conviction ever be factored into a decision whether to spare a criminal's life? Kopel thinks so, and cites the case of "Alessandro Serenelli, who in 1902 murdered an 11-year-old Italian girl named Maria Goretti because she was resisting his attempt to rape her." Maria was canonized in 1950; Serenelli aided the cause by testifying to her sanctity after a prison conversion.

My broader point is that even if (or, especially if), a person supports the death penalty or life without parole, it is possible that -- at least in unusual cases -- there can be post-conviction facts which might lead an executive with clemency power to decide to reduce the sentence for a prisoner guilty of an atrocious homicide.

Kopel links to arguments to the contrary here and here. Here's another, making the important point that impending death is a powerful mechanism for engineering transformations into "pleasant community-minded people," even if it devolves into bloodlust after a bit:

If you believe in rehabilitation, how can you not believe in the death penalty? Nothing seems to trigger complete rehabilitation more surely than a death sentence. I am all for such rehabilitation. Let's rehabilitate all child killers. Let's rehabilitate most murderers of adults. Let's rehabilitate all the poor misguided souls at Guantanamo. Heck, let's rehabilitate a few email spammers while we're at it.

It's an important point (couched in very creepy terms). If, as we can observe and know intuitively, the prospect of execution can rehabilitate, there likely must be a legitimate prospect of execution before you get a Tookie Williams. But that aside. Should it ever matter that someone comes clean after being duly convicted and sentenced to death? The heinous crimes these inmates committed aren't erased when their perpetrators come to regret them.

It seems to me there are two competing concerns, once you set aside the broader and tangential argument over whether there should be a death penalty in the first place. A jury's consideration whether to convict someone of a capital crime and then whether to sentence him to death can't, temporally speaking, take future events into consideration. A jury isn't deciding whether someone deserves to die in the abstract, they're deciding how the crime he committed ought to be punished. At the sentencing phase, they ponder the perpetrator's character, but consider in what context: In mitigation of the crime (while the state will offer evidence in aggravation). The jury considers whether the perpetrator's culpability for the crime is mitigated by evidence of his good deeds, kindness to animals, community service and the like.

Subsequent events can't ever mitigate what was going on in a man's heart and head when he pulled the trigger, often many years previously. This may seem like a fine point, but it's not. The jury does not, technically, evaluate to what extent the defendant is a generally good fellow, they consider whether his character and deeds color his crime in such a way that he is deserving of leniency. I'm not naive, and realize that defense lawyers will play on a jury's sense of abstract fairness, just as prosecutors will appeal to their passion and prejudice. This is as it should be in a justice system that relies on a man's peers to determine guilt and (in capital cases) punishment. But in an important way a trial verdict and sentence are snapshots capturing the crime and its perpetrator's culpability for it, not the defendant's abstract value.

Left there, the conclusion would be that once sentenced to death, assuming guilt (that is, no subsequent evidence proving innocence), a person should die, no matter what. Here is where an important policy consideration comes in. Once sentenced, a death row inmate is likely to live many more years. Do we want to remove almost all incentive to spend that time wisely and in service of others? We do if clemency is never a possibility, as some advocates argue should be the case. For purely practical purposes, would we rather (guilty) inmates live without hope, or rather with at least the slightest chance their behavior will be rewarded between conviction and execution?

And consider the nature of that incentive. Juries, theoretically, take "snapshots" of a crime and the perpetrator's culpability when it occurred. Executive clemency is an entirely different matter. (Just as we set aside the argument whether there should be a death penalty in the first place, set aside whether the power of executive clemency is a good idea or not.) Governors and Presidents aren't taking a snapshot of a crime, they are considering a much deeper time span, which necessarily includes the time between conviction and execution. Juries can't do that, governors can, in other words.

If we empower executives to essentially overturn jury verdicts, we are undermining the criminal justice system. If we trust them to consider both the nature of the crime and subsequent events, we are utilizing it -- properly, in my view -- as a check on the system. Executives are accountable to the people (theoretically; I strongly oppose pardons on the last day of an administration because this factor disappears), and so are not really making the decision by themselves, but on behalf of their constituents. If he or she is wrong, they'll hear about it, possibly on their way out of office after an unsuccessful re-election campaign.

Executive clemency, responsibly wielded, is an important tool that may encourage otherwise hopeless people to serve society, even in a small way. I appreciate the argument that society doesn't need a multiple murderer's service and is better off without it, but that sentiment will be vindicated in the vast majority of cases, which don't result in executive clemency. As a practical matter and as an accountable check on the system, clemency should be available in extraordinary circumstances.

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