In the “modern” death penalty era, which began with the Supreme Court’s Gregg v. Georgia decision in 1976, executive commutations of death sentences are exceedingly rare by historical standards.
According to data compiled by the Department of Justice, in the decade between 1961-1970, roughly 1 in 6 death sentences resulted in commutations. In contrast, in the decade between 1979-1988, only 1 in 40 sentences were commuted.
There is little question that political considerations play a role; this has been especially so since the early 1980s, when popular Florida governor Bob Graham faced a tough re-election bid in part because he was attacked as too soft on crime (his clemency record is dramatically different in his subsequent term) and later when George H. W. Bush famously used Willie Horton to attack Michael Dukakis’s death penalty stance.
The conventional wisdom seems to be that granting clemency in death penalty cases is too politically risky.
One way that governors justify stricter criteria for leniency without seeming to be too political is to narrow the understanding of the executive role, primarily in two ways.
First, executives shift the focus from culpability to simple guilt, and second, they constrict the review to narrow legal questions, treating their role as a kind of ultimate court.
But when one looks at the structure and history of commutations, across countries and throughout time, the most striking feature is exactly how much latitude executives are granted.
This is especially true in Virginia, where the decision rests solely with the governor and not with a board or advisory group (as in Texas). Nor are there constraints placed on the reasons upon which the decision is based.
It is precisely because the executive is not the judicial branch that a broader set of considerations (including simple mercy) are allowed, and have been invoked historically.
Nobody questions Teresa Lewis’s guilt or eligibility for the death penalty under current law.
But the issue facing Governor McDonnell (and other governors, of both parties) should properly be broader. Writers such as John Grisham have highlighted aspects of Ms. Lewis’s case that might warrant a commutation to life without the possibility of parole, but Governor McDonnell has chosen a narrower view.
Ducking responsibility by shrinking the focus of deliberation does not do justice to the historic meaning, or powerful potential, of clemency.
Dr. Danny Axsom is an Associate Professor of Psychology at Virginia Tech
Governor McDonnell would do well to read Edmund “Pat” Brown’s 1989 book entitled: “Public Justice, Private Mercy: A Governor’s Education on Death Row”. Pat Brown serve 8 years as the Governor of California (1959-67), and had served as Attorney General before being elected Governor. As Attorney General he supported the death penalty. As Governor he became opposed to the death penalty and favored imprisonment for life without parole instead. During his governorship he considered 59 death row appeals. He commuted 23 death sentences and allowed 36 others to be executed. His book lays out the process he established as Governor for considering individual death row appeals and the factors that he took into account in considering them. He also lays out the case for life without parole as the alternative to execution. These decisions, frankly, are among the most important that a Governor has to face and should be done with care and an open heart.