Schwarzenegger's Mistake: Clemency and Tookie Williams Commentary
Schwarzenegger's Mistake: Clemency and Tookie Williams
Edited by: Jeremiah Lee

JURIST Guest Columnist Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, says that California Arnold Schwarzenegger's ruling denying clemency in ths case of Crips gang co-founder Stanley "Tookie" Williams disregarded the constitutional foundations of clemency practice…

By denying clemency to Stanley "Tookie" Williams Arnold Schwarzenegger did more than allow another execution to be carried out. He broke faith with the understandings of those who wrote our Constitution and damaged the intricate balance of our constitutional government. Casually dismissing Williams's contention that he had been "reformed and…redeemed for his violent past," Governor Schwarzenegger's treated his own clemency power as a narrow and limited one. As he explained, the clemency power should not be used "to nullify the jury's decision of guilt and sentence…." except to prevent miscarriages of justice. This is not the way the clemency power was understood by those who made the power "to grant pardons and reprieves" part of our constitutional system, nor, throughout most of our history, by those charged with interpreting that power or with exercising it.

Although the original versions of the New York and Virginia Plans that provided the frameworks for debate at the Constitutional Convention included no provisions for pardon, revisions to both plans eventually did. The power that emerged from the convention was regarded by the Framers of the Constitution as necessary to a humane and effective scheme of government. Defending executive clemency Alexander Hamilton said, "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little fettered as possible."

Hamilton thought that the pardon power would and should be used mercifully, otherwise "justice would wear a countenance too sanguinary and cruel" and, in its merciful use, would ennoble those who wielded it.

Hamilton's understanding of clemency has been reiterated throughout American history by judges and politicians alike. Writing in 1833, in the first clemency case to reach the United States Supreme Court, Chief Justice John Marshall called pardon "an act of grace, proceeding from the power entrusted with the execution of the laws…." Twenty years later, the Supreme Court again embraced a very broad view of the clemency power, saying "Without such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy." In 1866 Justice Field wrote approvingly of what he called the "benign prerogative of mercy."

Lest anyone think that this is an outmoded, old fashioned conception of clemency, from time-to-time a similar standard has been embraced by governors and judges in our own era. Terry Sanford, Governor of North Carolina from 1961-65, provides one example of such a view. "The Executive," Sanford wrote "is charged with the exercise in the name of the people of an … important attitude of a healthy society – that of mercy beyond the strict framework of the law…. Executive clemency does not involve the changing of any judicial determination. It does not eliminate punishment; it does consider rehabilitation. To decide when and where such mercy should be extended is a decision which must be made by the Executive….It falls to the Governor to blend mercy with justice, as best he can, involving human as well as legal considerations, in the light of all circumstances after the passage of time, but before justice is allowed to overrun mercy in the name of the power of the state."

Chief Justice William Rehnquist, in a 1993 Supreme Court decision, called clemency the sovereign's "power to extend mercy, whenever he thinks it is deserved….", and five years later said it was "a matter of grace." Rehnquist suggested that this power was designed to allow the executive "to consider a wide range of factors not comprehensible by earlier judicial proceedings and sentencing determinations."

Yet, at least in the context of capital cases, this broad understanding of clemency steadily has been losing favor along with clemency itself.

From 1994-2004 (excluding former Illinois Gov. George Ryan's mass commutation of his state's death row) 25 clemencies were granted across the entire country; forty years earlier in the decade 1954-1964 there were 198 clemencies. As one commentator puts it, capital clemency has "died its own death, the victim of a political lethal injection and a public that overwhelmingly supports the death penalty." Thus at the outset of his administration, then Texas Governor George Bush embraced a standard for clemency that all but ensured that few if any death sentences would be seriously examined. "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?" During his six years as governor 150 men and two women were executed in Texas; Bush allowed the execution to proceed in all cases but one. As the journalist Alan Berlow notes, "This is an extraordinarily narrow notion of clemency review: it leaves little, if any, room to consider mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination, the competence of the legal defense, or disparities in sentences between co-defendants or among defendants convicted of similar crimes." It leaves little room for the kind of claims made by, and on behalf of, Tookie Williams. It is this cramped conception that animated Schwarzenegger's decision to allow Williams's execution to proceed.

Many governors today have turned crime fighting, tough-on-crime policy into a strategy for building political coalitions and strengthening their electoral prospects. Many are afraid that granting clemency to convicted murderers will leave them vulnerable to damaging charges that they are soft-on-crime. As a result, they have let the clemency power atrophy rather than courageously exercising their discretion to accord mercy to the condemned. In doing so they have departed from the original understanding of that power and historical practice. In the Williams case, Governor Schwarzenegger missed an opportunity to reverse that trend and did a disservice not only to Tookie Williams, but to all of us.

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Five College Fortieth Anniversary Professor at Amherst College and author of Mercy on Trial: What It Means to Stop an Execution

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.