Chapter II

Introduction to Clemency


A. Clemency Defined

B. Brief History of the Clemency Power in the U.S.

C. Clemency for Battered Women Who Kill

1. Backlash

2. Is Clemency an Appropriate Remedy?

D. Considerations for Improving Future Exercises of Clemency: A Comparative Analysis of Different States' Procedures

A. Clemency Defined

Clemency is a general term for the power of an executive to intervene in the sentencing of a criminal defendant to prevent injustice from occurring. It is a relief imparted after the justice system has run its course. 30 Clemency provisions exist in every judicial system in the world except China. 31 The U.S. Constitution gives the President the power to grant clemency. In 35 states, the governor can make clemency decisions directly, or exercise this power in conjunction with an advisory board. In five states, boards make clemency decisions, and in 16 states, the power to grant clemency is shared between the governor and an advisory board. 32


Chief Justice William Howard Taft explained why clemency is essential to just government:


Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford remedy it has always been thought essential in popular vest in some authority other than the courts power to ameliorate or avoid particular criminal judgments. 33


Types of clemency include amnesty, pardon, commutation, and reprieve. Amnesty is granted to a group of people who committed political offenses. A pardon may lessen a defendant's sentence or set it aside altogether. One may be pardoned even before being formally accused or convicted.


While a pardon attempts to restore a person's reputation, a commutation of sentence is a more limited form of clemency. It does not remove the criminal stigma associated with the crime; it merely substitutes a milder sentence. A reprieve postpones a scheduled execution. 34 Women seeking clemency through the Clemency Project usually request a commutation of sentence. Alternatively, or in addition, they may request a pardon if circumstances suggest that they were not guilty of criminal homicide.


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B. A Brief History of the Clemency Power in the U.S.

In 1833, U.S. v. Wilson, 32 U.S. 150, 160 (1883) was the first case to discuss the president's pardoning power. In Wilson, Chief Justice Marchall defined pardoning power as an executive "act of grace." 35. In Biddle v. Perovich 36, Justice Homes challenged the Wilson court's understanding of clemency. According to Holmes:


A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. 37


While the "act of grace" rationale for clemency was rejected for a public welfare centered theory, courts continue to interpret the President's pardoning power broadly.


In Ex parte Garland, 71 U.S. 333 (1866), the Supreme Court held that the pardoning power of the president was not subject to legislative control. Though the judicial branch has some power to regulate the exercise of presidential pardon, the executive clemency power is not significantly limited by other branches.


Scrutiny of an executive's reasoning is left to the political process. 38 When Governor Ray Blanton of Tennessee granted 52 clemencies during his final week in office, Senator James Sasser characterized Blanton's act as "the grossest breach of a chief executive's discretionary power perhaps in the history of the State of Tennessee. 39 In 1986, New Mexico's outgoing mayor, Tony Anaya, was harshly criticized when he commuted the sentences of all five death row inmates just before leaving office. 40 Perhaps because of this scrutiny, the use of executive clemency has declined over the last 20 years. 41

C. Clemency for Battered Women Who Kill

1. Backlash

Public scrutiny is particularly harsh when governors grant clemency to battered women who killed. According to the National Clearinghouse for the Defense of Battered Women, since 1978, 104 women in 23 states have received clemency. 42 Recent examples include Diane Faye Firtzig of Illinois (1998); June Briand of New Hampshire (1996); and Kimberly Soubielle of Florida (1993). (See Appendix 3 for newspaper articles on recent awards of clemency).


Just before Christmas in 1990, the outgoing governor of Ohio, Richard Celeste, granted clemency to twenty-five women in prison for killing or assaulting their batterers. 43 Thereafter, he was met with an onslaught of media criticism. The Attorney General of Ohio attempted to invalidate the commutations. 44 The head of the Ohio Prosecuting Attorney's Association stated publicly that Celeste's decision to grant clemency would encourage other battered women to kill their abusers. 45 Other critics argued that the grant of clemency to battered women who killed essentially sanctioned their action, putting an implicit approval on a battered woman's right to impose the death penalty on her abuser. Finally, critics accused Governor Celeste of usurping the role of the jury, insensitivity to victims' family members, and undermining the structure of the criminal justice system. 46


2. Is Clemency an Appropriate Remedy?

Clemency is, of course, an imperfect tool for dealing with women who killed their abusers--many of whom should never have gone to jail in the first place. When clemency comes in the form of a commutation, the only result is a reduction in the term of years or a revocation of a death sentence. Also, a woman's ability to receive clemency depends more on the political climate than on her crime and her prison record.


Imperfect or not, clemency is often the only available tool to rectify past failings of the justice system. In response to the backlash following Governor Celeste's grants of clemency, Christine Becker argued:


Many of these arguments against granting clemency for battered women who have killed are convincing, yet they often seem to reflect a vision of what should be, instead of what is. They often ignore the arguments that society is somewhat responsible for the situation of battered women, and that battered women often do not receive fair trials for various reasons...[E]ven while advocating that battered women should turn to various alternative sources for help...most critics recognize that alternatives for battered women are woefully scarce. The response of police and law enforcement officials to battered women often leaves something to be desired, shelters are few and far between, and court restraining orders are a makeshift shield at best, often violated and hard to enforce. 47


Among many other reasons, we need clemency for battered women who killed because:


1. Legal actors' ignorance of battered women's special circumstances negatively impacts a battered woman's ability to receive a fair trial. (See discussion of Michigan Supreme Court's Task Force on Gender Issues in the Courts in Chapter I).


2. Judicial flexibility in sentencing traditionally played a large role in treating battered women who kill justly. The trend toward inflexible sentencing and strict enforcement of criminal sentencing necessitates increased reliance on clemency. 48


3. The "paradigmatic" battered woman--the subject of much expert testimony on the BWS--excludes women who do not fit right racial or economic types.


4. Women who were sentenced in the late 70s or early 80s often had no evidence of the abusive nature of their relationship presented at trial or sentencing.


5. On average, women who kill their intimate partners are sentenced more harshly than men who kill their intimate partners.


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D. Considerations for Improving Future Exercises of Clemency: A Comparative Analysis of Different States' Procedures

It is crucial to find ways to keep the public from hardening its collective heart to the grant of clemency to battered women who kill. Public reaction to clemency puts pressure on the governor to make his or her decision accordingly. The decision of one governor to grant clemency may influence another governor's decision to grant clemency to a similarly situated woman. Criticism of the way in which Governor Celeste selected candidates and reviewed women's files has led clemency advocates to call for principled rationales for the exercise of clemency. 49


Joan Krause, author of Of Merciful Justice and Justified Mercy: Commuting the Sentence of Battered Women Who Kill, suggests ways to structure the clemency process so as to succeed with clemency while not alienating the public. 50 Krause critiques several states' clemency procedures, focusing on issues such as criteria for selection of women, the group which performs the review, and the type of information considered.


1. Selection Criteria

States have differing methods for selecting women for consideration. Some of these include:


• Reviewing the records of women convicted of violent crimes against spouses or companions who abused them


• Reviewing the records of women who could have presented evidence of domestic violence at trial


• Requiring inmate to initiate the process


• Requiring an advocacy group to recommend candidates


• Sending all inmates notice about requirements for eligibility for clemency and


• leaving it to them to choose to submit their own petitions. 51


Governor Celeste selected the first of these alternatives. Krause expressed concern that such a method, while reaching a large number of women, may promote the release of women based on inaccurate and culturally biased stereotypes, particularly when the decision makers have no prior experience with battered women. 52 On the other end of the spectrum, relying on inmates to submit petitions on their own may deter deserving women from applying.


2. Who Should Review the Petitions?

The reviewing body also differs from state to state. In Ohio, the Department of Corrections review clemency applications. In Massachusetts, the Advisory Board of Pardons does so. In Maryland, information about battered women in prison is reviewed and presented to the Governor and Parole Board by two outside advisory groups. The Governor of Maryland was widely criticized for relying so heavily on outside groups who were deemed prejudiced in favor of clemency. Although expertise of advocacy groups is essential in the process, advocates for clemency suggest that it may be politically unwise to have too much expert involvement in the review of clemency petitions. 53


3. What information Should be Reviewed?

Most of the media backlash following Celeste's clemency awards centered on the kind of information which critics felt should--and should not--inform the decision to grant clemency. Governor Shaefer of Maryland was criticized for not reviewing trial transcripts and not notifying victims' relatives, prosecuting attorneys and trial judges. 54 In most states, clemency provisions require notification of both prosecuting attorney and sentencing judge. Many states require notification of the impending decision to grant clemency in local newspapers. Krause suggests that including family members and prosecutors in the clemency process may make clemency more politically palatable. 55 Finally, Krause suggests that acts of clemency might not incur such harsh criticism if governors provided reasoned explanations of their decisions to grant or deny clemency. 56


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30. Allison Madden. Clemency for Battered women Who Kill Their Abusers: Finding a Just Forum. 4 Hastings women's L.J. 1, 50 (1993).

31. Id.

32. Christine Noelle Becker. Clemency for Killers? Pardoning Battered Women Who Strike Back. 29 Loy.L.A.L.Rev. 297, 307 (1995).

33. Linda Ammons. Discretionary Justice: A Legal and Policy Analysis of a Governor's Use of the Clemency Power in the Cases of Incarcerated Battered Women. 3 J.L.& Pol'y 1, 30 (1994).

34. There is currently no death penalty in Michigan.

35 See: Becker at 308.

36. Biddle v. Perovich, 274 U.S. 480, 486 (1927).

37. Id.

38. See: Ammons at 29.

39. See id. at 51.

40 See id.

41. See Becker at 310.

42 Husband Killer Pardoned in N.H. U.P.I. December 4, 1996.

43. Joan Krause. Of Merciful Justice and Justified Mercy: Commuting the Sentences of Battered Women who Kill. 46 Fla. L. Rev. 699, 703 (1994).

44. See: id. at 336

45 See: id. at 332.

46. See: id.

47. See: Becker at 333-34.

48. See: Becker at 311.

49. See: id. at 320.

50. See: Krause at note 42, supra.

51. See: Krause at 765-66.

52. Id.

53. See: Madden, note 30, supra.

54. See: Krause, note 42, supra at 769.

55. Id.

56. Id.