Last updated on: 8/29/2008 | Author:

Does Clemency Serve as a Safeguard in Capital Punishment Cases?

PRO (yes)


In Herrera v. Collins (decided Jan. 25, 1993), the US Supreme Court, in a decision written by Chief Justice William H. Rehnquist, held that:

“Clemency is deeply rooted in our Anglo American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted…

Executive clemency has provided the ‘fail safe’ in our criminal justice system. It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after discovered evidence establishing their innocence… Recent authority confirms that over the past century clemency has been exercised frequently in capital cases in which demonstrations of ‘actual innocence’ have been made…

History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.”

Jan. 25, 1993 - Herrera vs. Collins


Daniel T. Kobil, JD, Professor of Law at Capital University Law School, in his Feb. 28, 2001 prepared statement before the US House of Representatives Subcommittee on the Constitution Hearing on Presidential Pardon Power, wrote:

“The most obvious benefit of clemency is that it provides a ‘fail-safe’ to correct the mistakes of an imperfect justice system. Although today our legal systems are generally much more refined than the common law systems in which clemency originated, mistakes inevitably occur… In Illinois, executions were recently halted and Governor Ryan established a clemency commission to study the administration of the death penalty after it came to light that since 1990, that state has executed 11 inmates and freed 10 from Death Row… Clearly, as the federal system gears up to reinstate executions, and limits on appeals reduce the ability of judges to ameliorate punishment, there remains a need for clemency in cases of actual innocence, or where there are other questions about guilt.”

Feb. 28, 2001 - Daniel T. Kobil, JD


Hans Sherrer, Publisher of Justice:Denied, in his Jan. 31, 2003 article “Illinois Governor George Ryan Pardoned Four Innocent Men Condemned to Death on January 10, 2003, and the Next Day He Cleared Illinois’ Death Row,” wrote:

“During a speech at the DePaul University College of Law on Friday, January 10th, Governor Ryan announced he was exercising his constitutional authority by pardoning four men on Illinois’ death row who had suffered the ‘manifest injustice’ of having a false confessions tortured out of them by the Chicago Police…

In granting the pardons on January 10th, Gov. Ryan performed his historic duty as a governor to act as a ‘fail safe’ line of defense protecting an innocent man or woman who has not been protected from the harm of a wrongful conviction by the trial judge, or the appellate judges reviewing that conviction. The U.S. Supreme Court clearly stated the importance of that executive role in the 1993 case of Herrera v. Collins.”

Jan. 31, 2003 - Hans Sherrer


Mary-Beth Moylan, JD, Assistant Director of Appellate Advocacy and Lecturer in Law, and Linda E. Carter, JD, Professor of Law and Director of Criminal Justice Concentration, at the University of the Pacific McGeorge School of Law, in their 2008 paper “Clemency in Capital Cases in California,” prepared at the request of the California Commission on the Fair Administration of Justice, wrote:

“We believe that clemency serves a purpose as it is presently constructed in California and elsewhere. Although there are tremendous variations from Governor to Governor and state to state, the concept of clemency as a nonjudicial process that allows for the consideration of any type of issue is a safety valve in the overall criminal justice system. If standards and procedures are adopted, there are likely to be issues that would be precluded from the process. Moreover, the more specific the requirements, the more likely there are to be judicial challenges to the process. One enduring attribute of clemency is to provide a forum outside of the judicial process. This nonjudicial characteristic has allowed Governors to consider issues that could not be raised in court, such as the battered women’s syndrome before the evidence was admissible in court.

This means, though, that clemency should not be the primary avenue for handling claims of innocence, mental deterioration on death row, or any other issue on which there is a need for a guaranteed form of review. Instead, clemency should be viewed as an extra safeguard in addition to a functioning criminal justice judicial system.”

2008 - Mary-Beth Moylan, JD Linda E. Carter, JD

CON (no)


Adam M. Gershowitz, JD, Associate Professor of Law at South Texas College of Law, in his Fall 2001 Journal of Law and Politics article “The Diffusion of Responsibility in Capital Clemency,” wrote:

“The Supreme Court of the United States has described executive clemency as the ”fail safe’ in [the]… criminal justice system.’ In death-penalty cases that fail safe is essential… In short, clemency truly does have the potential to be the fail safe of the criminal justice system. Unfortunately, however, that potential has not been realized.  In fact, the use of executive clemency has dramatically declined in the last few decades…

The decline in executive clemency has been well documented (and lamented) and the explanation for it is quite simple: self-interest…

In short, the area of capital clemency is the site of a total diffusion of responsibility.  The Court will not regulate the clemency process because it is a matter for the executive and some governors will not grant clemency because the execution process belongs entirely to the courts.  All the while, the use of capital punishment continues to increase, the deregulation of the death penalty continues, and the Supreme Court continues to proclaim executive clemency as the fail safe of the criminal justice system.”

Fall 2001 - Adam M. Gershowitz, JD


Douglas A. Berman, JD, William B. Saxbe Designated Professor of Law at the Ohio State University Moritz College of Law, in his July 11, 2007 written statement before the US House of Representatives Committee on the Judiciary Hearing on “The Use and Misuse of Presidential Clemency Power for Executive Branch Officials,” wrote:

“Unfortunately, in modern times, the ‘fail safe’ of executive clemency has been failing to effectively serve the ends of justice that the Framers emphasized.  Perhaps because only the most troublesome grants of clemency generate media attention and legislative hearings, executive officials often sensibly conclude that they will never face serious criticisms for failing ever to exercise their historic clemency powers, but will always face scrutiny for exercising this power. These political realities have led a Supreme Court Justice and leading scholars to lament that the clemency process has ‘been drained of its moral force’ and that the important concept of mercy has lost is resonance in modern times.”

July 11, 2007 - Douglas A. Berman, JD


Cathleen Burnett, PhD, Associate Professor of Sociology and Criminal Justice at the University of Missouri-Kansas City, in her Fall 2003 Texas Journal on Civil Liberties & Civil Rights article “The Failed Failsafe: The Politics of Executive Clemency,” wrote:

“Reliance on a gubernatorial sense of professional responsibility as a mechanism for ensuring appropriate application of executive clemency is a failed venture…

It is unfortunate that the clemency process is fraught with political overtones. The petition process needs to be restructured if indeed miscarriages of justice are to be prevented…

[T]he clemency consideration should be a meaningful review. If the governor remains as the final-decision maker in death penalty clemency applications, she should meet personally with the attorneys and publicly report an explanation for the clemency decision. This would have the advantage of restoring accountability for the pending execution and would educate the public about the administration of justice in the state.

Clearly, many miscarriages of justice are not corrected through the executive clemency process. The circumstantial evidence of political influence leads me to convict the clemency process of failure to ensure justice.”

Fall 2003 - Cathleen Burnett, PhD


The American Bar Association (ABA), in its Death Penalty Moratorium Implementation Project’s Sep. 2006 report “Florida’s Death Penalty Problems and Recommendations,” wrote:

“Full and proper use of the clemency process is essential to guaranteeing fairness in the death penalty system, but

s clemency process is full of ambiguity and secrecy.  Given the ambiguities and confidentiality surrounding
Florida’s clemency decision-making process and the fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that

s clemency process is adequate.  For example, the Board of Executive Clemency is not required to hold a public hearing to consider an inmate’s claims or provide reasons for denying clemency and the factors considered by the Board are largely undefined.”

Sep. 2006 - American Bar Association (ABA)