The Real Cost of Prisons Weblog

In 1990, residents of Danville, Va., were shocked at
the execution-style murder of a local businessman
during what police described as a bungled drug deal. A
jury swiftly convicted William Saunders of the
killing. The betting odds were that Saunders would get
the death penalty. The odds were even greater that
he'd be executed. Virginia ranks close to Texas as an
"execute em' quick, and in large numbers" death
penalty state.

Guilt was not an issue in his case -- Saunders
purportedly killed in cold blood. But later he had a
jailhouse epiphany, and had become a strong advocate
against drugs and violence. There were also hints of
improprieties in his sentencing. Authorities praised
Saunders as a changed man.

Governors are scared stiff of being tagged as soft on
crime and of subverting the people's will. They
routinely duck and run from granting clemency to
convicted murderers. Yet, in Sept. 1997, conservative
Republican Gov. George Allen did what many thought
unthinkable: He spared Saunders' life.

Six months after granting clemency to Saunders,
Allen's approval rating was far higher than a year
earlier. Allen's clemency grant may not have caused
his approval rating to climb, but the act didn't hurt
him. This defied the conventional wisdom that outraged
voters punish governors who grant clemency to death
row inmates. Allen's political career didn't miss a
beat. He left the governors post, then ran and won a
Senate seat.

Allen is no aberration. In the decade since 1993, 15
governors have granted clemency in capital punishment
cases, mostly on humanitarian grounds. Only one of the
governors failed to win re-election. In nearly every
case, the approval ratings of the governors who
granted clemency remained steady or climbed.

That's no guarantee that if California Gov. Arnold
Schwarzenegger grants clemency to Stanley "Tookie"
Williams, scheduled for execution Dec. 13, there'll be
an instant numbers reversal in his plummeting
popularity. But clemency won't be the death knell for
Schwarzenegger's re-election bid.

Nor was it for the governors who granted clemency
during the 1950s and 1960s, when the death penalty was
commonly used. In those years, governors granted
clemency to roughly one in four death row inmates.
California Gov. Pat Brown topped that rate. During the
late 1950s and 1960s, with no public outcry, Brown
granted clemency to one out of three death row
inmates.

That abruptly changed after the Supreme Court
reinstated capital punishment in 1976. Since that
time, governors have cringed at being branded as soft
on crime and insensitive to victims, and they also
believe they will go down in flaming political defeat
should they grant a clemency appeal. They distort,
ignore or misread the legal and moral importance of
clemency.

Supreme Court Chief Justice William Rehnquist, never
one to be mistaken for a bleeding heart on crime and
punishment, put clemency in the right frame. In the
1993 Herrera v. Collins decision, he called clemency
the "fail-safe" that governors have at hand to right a
legal wrong or prevent a miscarriage of justice. It's
also their legal means to simply do the humane thing
when it serves justice.

Rehnquist's apt read of what clemency is supposed to
be about is doubly important because the Court in that
same case severely narrowed the grounds in which
federal courts could intervene and grant habeas corpus
to a prisoner who claimed innocence in a capital case.
That further added to the burden held by prisoners who
seek legal relief in courts. Judges are loath to
overturn lower court convictions in death penalty
cases even when there are outrageous examples of
prosecutorial misconduct, witness tampering or the use
of flimsy or non-existent physical evidence to obtain
convictions.

In many death row cases today, governors act only when
there is ironclad proof that a death row inmate was
legally insane when he or she killed. Despite some
evidence of mental impairment, Schwarzenegger refused
to grant clemency to Donald Beardslee earlier this
year. He flatly said that clemency should not be used
to undo the judgment of the people, and that he'd
spare a life only when there is absolute legal and
clinical proof that a condemned killer was insane.
That shoves the clemency bar past the point of
relevance.

Tookie Williams doesn't come close to passing
Schwarzenegger's clemency test. William's appeal comes
down to whether his good deeds and commendations --
including one from President Bush and other world
figures -- convince Schwarzenegger that he deserves to
live. Good deeds in prison haven't been enough to sway
most governors to grant clemency. Still, the few times
that governors have bucked the death penalty crowd and
spared a life, it has not been the political kiss of
death for them. It won't be Schwarzenegger's, either.

Earl Ofari Hutchinson is an author and political
analyst. He is the author of 'The Crisis in Black and
Black' (Middle Passage Press).
http://www.alternet.org/columnists/story/28580/