On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life
Sarat, Austin, Hussain, Nasser, Stanford Law Review
INTRODUCTION I. CLEMENCY AND SOVEREIGNTY: A LEGALLY SANCTIONED ALEGALITY II. THE JURISPRUDENCE OF CLEMENCY III. THE RHETORIC OF SPARING LIFE A. I Feel Your Pain B. We Are All Victims of a Failed System C. I Am a Victim of a Political System that Will Not Act CONCLUSION
"The right to pardon a criminal, either by mitigating or by entirely remitting the punishment, is certainly the most slippery of all the rights of the sovereign. By exercising it he can demonstrate the splendor of his majesty and yet thereby wreak injustice to a high degree. With respect to a crime of one subject against another, he absolutely cannot exercise this right, for in such cases exemption from punishment constitutes the greatest injustice toward his subjects."
--Immanuel Kant (1)
"[W]hat renders the 'I forgive you' sometimes unsupportable or odious ... is the affirmation of sovereignty."
--Jacques Derrida (2)
On January 11, 2003, Governor George Ryan of Illinois emptied that state's death row by exercising his clemency powers under the state constitution, first pardoning four, and then commuting 167, condemned inmates' sentences in the broadest attack on the death penalty in decades. (3) Ryan's act was the single sharpest blow to capital punishment since the United States Supreme Court declared it unconstitutional in 1972, a ruling that caused approximately 600 death sentences across the nation to be reduced to life in prison. It was also a dramatic reminder of the powers of chief executives at the state and federal level to grant clemency and, in so doing, to spare life. (4)
Not surprisingly, Ryan's decision drew impassioned responses from all sides of the death penalty debate and all parts of the political spectrum. (5) Some lionized him for his courage and for what they saw as an important step on the road to abolishing capital punishment. (6) Others vilified him for making a mockery of murder victims, (7) undermining democracy, (8) using "raw power to cut down the law itself," and making law meaningless. (9)
Such criticism has been a repeated response to other uses of executive clemency, and it has taken its toll, especially on the exercise of clemency in capital cases. (10) Across the nation, the long-held constitutional right of chief executives to bestow mercy has "died its own death, the victim of a political lethal injection and a public that overwhelmingly supports the death penalty." (11) Thus, at the outset of his administration, then-Texas Governor Bush embraced a standard for clemency that all but ensured that few if any death sentences would be seriously examined. (12) Writing about Bush's views, Alan Berlow noted:
"In every case," [Bush] wrote in A Charge to Keep, "I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?" This is an extraordinarily narrow notion of clemency review: it seems to leave little, if any, room to consider mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, the competence of the legal defense, or disparities in sentences between codefendants or among defendants convicted of similar crimes. Neither compassion nor "mercy," which the Supreme Court as far back as 1855 saw as central to the very idea of clemency, is acknowledged as being of any account. (13)
Similarly, when he was Governor of Arkansas, Bill Clinton explained his reluctance to grant clemency by saying: "The appeals process, although lengthy, provides many opportunities for the courts to review sentences and that's where these decisions should be made." (14)
The Bush and Clinton views were, and are still, very much the norm. (15) The result is that "at the same time the number of death sentences and executions has increased the number of clemency grants has decreased. …