Capital Clemency and Traditions of Mercy

Although clemency is widely regarded as a critical stage of any death penalty case, its role as an ‘extra-judicial’ process allows for consideration of issues and concerns that the courts are frequently not empowered to consider. Of particular note in the context of clemency is its potential intersection with larger conceptions of ‘mercy’ – something which, in the past, has led to death penalty commutations.

Interestingly, December 8, 2015 marks the start of a “Jubilee Year of Mercy” for the Catholic Church, an event announced by Pope Francis in March that traditionally takes place every fifty years, historically defined as a time when “properties were returned to their original owners or legal heirs, slaves were set free and creditors were barred from collecting debts.” Within the Catholic Church, a jubilee is typically celebrated every twenty-five years, with the next jubilee slated for 2025. The Pope has the power to declare “extraordinary” jubilees, however, which is what Pope Francis did this year, in declaring 2016 a “holy year of mercy.”

Pope Francis’s decision to declare an extraordinary jubilee, asking people in the coming year to “put mercy before judgment,” also coincides with his recent actions and statements concerning the death penalty in the United States and worldwide. In a September address to the U.S. Congress, Pope Francis spoke out in favor of the abolition of the death penalty, stating that “every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.” In addition to this address, Pope Francis drew attention when he sent a letter to the Georgia Board of Pardons and Paroles asking that the Board commute the sentence of death-row inmate Kelly Gissendaner. (Gissendaner was executed on September 30, 2015, despite the Pope’s request). Representatives for the Pope also sent a letter to Oklahoma Governor Mary Fallin in advance of Richard Glossip’s scheduled execution this fall, urging that commutation of Glossip’s sentence would an “admirable and just act of clemency.” (Glossip’s execution was ultimately stayed on account of last-minute problems with Oklahoma’s lethal injection drugs).

Although grants of clemency to death-row inmates typically involve concerns about the appropriateness of a death sentence amid concerns over innocence, intellectual disability, or proportionality, governors have, in the past, taken pleas of mercy into account in deciding a condemned individual’s fate. In 1999, Governor Mel Carnahan of Missouricommuted the sentence of Darrell Mease, following a papal visit to St. Louis and a plea to save Mease’s life. While Carnahan’s decision came as a surprise to many, it was within Carnahan’s power to commute Mease’s sentence on any grounds he deemed appropriate.  (See Chapter 9 in the ABA’s Missouri Capital Punishment Assessment Report, available here).

It is unclear what effect, if any, this year’s extraordinary jubilee year of mercy may have on clemency decision makers’ consideration in capital cases, but, as the Supreme Court has itself said, “a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws.United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833).  The coming year will also, coincidentally, reflect an increase in the ABA’s attention to capital clemency, through its creation of the Capital Clemency Resource Initiative.  The CCRI was established to address the troubling lack of resources and expertise available to practitioners and decision makers in the capital clemency process and—for the first time—to provide targeted, comprehensive, and current materials to guide stakeholders through this crucial last phase of the death penalty process.  These materials will become available for the first time in 2016.