Mercy on Trial

What It Means to Stop an Execution

Austin Sarat

• Publisher: Princeton University Press
• Year: 2009
• ISBN:
  9781400826728
• Topic: Diritto
• Subtopic: Giurisprudenza

On January 11, 2003, Illinois Governor George Ryan--a Republican on record as saying that "some crimes are so horrendous... that society has a right to demand the ultimate penalty"--commuted the capital sentences of all 167 prisoners on his state's death row. Critics demonized Ryan. For opponents of capital punishment, however, Ryan became an instant hero whose decision was seen as a signal moment in the "new abolitionist" politics to end killing by the state.
In this compelling and timely work, Austin Sarat provides the first book-length work on executive clemency. He turns our focus from questions of guilt and innocence to the very meaning of mercy. Starting from Ryan's controversial decision, Mercy on Trial uses the lens of executive clemency in capital cases to discuss the fraught condition of mercy in American political life. Most pointedly, Sarat argues that mercy itself is on trial. Although it has always had a problematic position as a form of "lawful lawlessness, " it has come under much more intense popular pressure and criticism in recent decades. This has yielded a radical decline in the use of the power of chief executives to stop executions.
From the history of capital clemency in the twentieth century to surrounding legal controversies and philosophical debates about when (if ever) mercy should be extended, Sarat examines the issue comprehensively. In the end, he acknowledges the risks associated with mercy--but, he argues, those risks are worth taking.

C H A P T E R 1

Mercy, Clemency, and

Capital Punishment

THE ILLINOIS STORY

If we simply use the term “mercy”to refer to certain of thedemands of justice (e.g., the demand for individuation), then mercy ceases to be an autonomous virtue and instead becomes part of . . . justice. It thus becomes obligatory,

and all the talk about gifts, acts of grace, supererogation, and compassion becomes quite beside the point.If, on the other hand, mercy is totally different from justice and actually requires (or permits) that justice sometimes be set aside, it then counsels injustice. In short, mercy is either a

vice (injustice) or redundant part of justice.

—Jeffrie Murphy

No one who has never watched the hands of a clock marking the last minutes of a condemned man’s existence, knowing that he alone has the temporary Godlike power to stop the clock, can realize the agony of deciding an appeal for executive clemency.

—Michael DiSalle

Death is power’s limit, the moment that escapes it.

—Michel Foucault

ON JANUARY 10 AND 11, 2003, Governor George Ryan emptied Illinois’s death row. Exercising his clemency powers under the state constitution, he first pardoned 4 and then commuted 167 condemned inmates’ sentences in the broadest attack on the death penalty in decades. Ryan’s act was a compelling moment in our society’s continuing turmoil about crime and punishment, appearing, at first glance, to be a rare display of mercy in distinctly unmerciful times. As a seemingly humane, compassionate gesture in a culture whose attitudes toward punishment emphasize strictness not mercy, severity not forgiveness, it ran against the grain of today’s tough-on-crime, law-and-order politics. In the controversy that it occasioned, Ryan’s clemency put mercy on trial, forcing us to consider anew when and to whom it should be accorded.

It was, in addition, the single sharpest blow to capital punishment since the U.S. Supreme Court declared it unconstitutional in1972.¹ Because Ryan pardoned or commuted the sentences of sadistic rapists and murderers as well as those who seemed more sympathetic candidates for mercy and those whose convictions were questionable, his decision produced an explosive reaction among people who believe that death is both a morally appropriate and necessary punishment. They demonized Ryan and denounced his clemency in the strongest possible terms, claiming that he had dishonored the memory of murder victims, inflicted great pain on their surviving families, made the citizens of Illinois less safe, and abused his power. For opponents of capital punishment, Ryan became an instant hero. His decision, they claimed, would be a signal moment in the evolution of a “new abolitionist”politics.² They hoped it would mark a turning point on the way toward the demise of state killing.

That Ryan acted with two days left in his term and in the face of vocal opposition from citizens, the surviving families of murder victims, prosecutors, and almost all of Illinois’s political establishment only compounded the drama. In addition, and even to many opponents of capital punishment, Ryan’s action was a worrying reminder of the virtually unchecked powers of chief executives at the state and federal level to grant clemency. In a society committed to the rule of law, to the idea that all of the government’s actions should be governed and disciplined by rules, that all government powers should be checked and balanced, that those who govern always should be accountable for their acts, what Ryan did exposed a gaping hole in the fabric of legality. It seemed to push to, and beyond, the limits of law’s ability to regulate executive power, and, like the actions of the president in times of national emergency, hinted at the specter of power out of control, a dangerous, undemocratic, unaccountable power lying dormant and waiting for an occasion to be exercised. ³

George Ryan hardly seemed typecast for such a dramatic part in our contemporary history. Prior to becoming governor, Ryan had had a long career in Illinois politics, serving in the state legislature from 1973 to1983, as lieutenant governor from 1983 to 1991, and as secretary of state in 1991. Because Ryan embodied a rather unremarkable combination of familiar midwestern Republican positions—fiscally conservative, moderate in his social views—his 1998 election as governor was barely noticed nationally and greeted with little fanfare locally. This white-haired, sixty-nine-year-old former pharmacist from Kankakee, Illinois, did not fit anyone’s stereotype of either demon or hero, much less of the kind of national and international celebrity his clemency decision would make him. Nothing in his personality, or prior political record, suggested he would make much of a splash during his gubernatorial term or become a key national anti–death penalty activist. Ryan himself noted, “I mean, I am a Republican pharmacist from Kankakee. All of a sudden I’ve got gays and lesbians by my side. African-Americans. Senators from Italy, groups from around the world. It’s a little surprising.”⁴

Throughout his career in government he had been an outspoken supporter of capital punishment, and in his gubernatorial campaign he had restated his belief in the appropriateness of the death penalty. “I believed some crimes were so heinous, ”Ryan said of his long-held position on capital punishment, “that the only proper way of protecting society was execution. I saw a nation in the grip of increasing crime rates; and tough sentences, more jails, the death penalty—that was good government.”In 1977, after the Supreme Court lifted its ban on execution, a bill to reinstate the death penalty came before the state legislature in Springfield. When an anti–death penalty legislator asked his colleagues to consider whether they personally would be willing to throw the switch, “Ryan rose to his feet with ‘unequivocal words of support’ for execution—words he now regrets. The truth, though, was that Ryan never thought about capital punishment much before that vote or for more than twenty years afterward, except as an abstract idea of justice. ‘I supported the death penalty, I believed in the death penalty, I voted for the death penalty.’”⁵

During his tenure as governor his views about capital punishment were radically transformed, with the result that he took two particularly dramatic actions: the first a statewide moratorium on executions, which he announced in February 2000; the second his mass clemency. These two acts helped to galvanize and change the national discussion about capital punishment.

THE SHIFTING TERRAIN

By the time Ryan became governor, voices at both the national and state level had begun to raise new and disturbing questions about state killing. To take but one particularly important example, in February 1997 the American Bar Association issued a call for a nationwide moratorium on executions. The ABA proclaimed that the death penalty as “currently administered”was not compatible with central values of our Constitution. Thus it called

upon each jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures . . . intended to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent people may be executed.⁶

In the report accompanying its call for a moratorium, the ABA pointed to three glaring flaws in the death penalty process. 7 First was the failure of most states to guarantee competent counsel in capital cases. Because those states have no regular public defender systems, indigent capital defendants are frequently assigned lawyers with no interest, or experience, in capital litigation.⁸ The result is often an incompetent defense that is all the more damaging in light of rules preventing defenses not raised, or waived, at trial from being raised on appeal or in habeas proceedings.⁹ The ABA thus called for the appointment of “two experienced attorneys at each stage of a capital case.”¹⁰

The second basis for the ABA’s recommended moratorium was a significant erosion in postconviction protections for capital defendants caused by the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996. Contradicting the provisions of that act, the ABA said that “federal courts should consider claims that were not properly raised in state court if the reason for the default was counsel’s ignorance or neglect and that a prisoner should be permitted to file a second or successive federal petition if it raises a new claim that undermines confidence in his or her guilt or the appropriateness of the death sentence.”Third, the ABA called for a moratorium because of the persistence of “longstanding patterns of racial discrimination . . . in courts around the country.”¹¹ The ABA cited research showing that defendants are more likely to receive a death sentence if the victim is white rather than black, ¹² and that in some jurisdictions African Americans tend to receive the death penalty more than do white defendants.¹³ The report urged the development of “effective mechanisms”to eliminate racial prejudice in capital cases.

Following the ABA’s recommendation, activists mounted a statewide moratorium campaign in Illinois, ¹⁴ and legislators introduced bills in the state legislature calling on then-governor Jim Edgar to stop executions and appoint a commission to conduct a comprehensive review of the state’s death penalty system.¹⁵ The Chicago Council of Lawyers joined in the call for a moratorium, citing especially the fact that between 1993 and 1997 seven death row inmates had been freed after it was discovered that they were convicted and sentenced to death for crimes they did not commit. In July 1997 Governor Edgar signed into law a bill providing funds for postconviction DNA testing of inmates on death row. And late in that year, the Illinois State Bar Association formed a special committee to study the state’s capital case process and to recommend needed reforms.

During the 1990s the increasingly availability of DNA testing throughout the country and in Illinois resulted in dramatic exonerations of inmates condemned to death, like those cited by the Chicago Council of Lawyers. Among the most striking and important of these cases was the exoneration in February 1999 of Anthony Porter. Porter, an African-American man with an IQ of 51, had been convicted and sentenced to die for the double homicide of Marilyn Green and Jerry Hillard in 1982. His conviction and sentence were later upheld on appeal by both the Illinois and the U.S. Supreme Court. However, forty-eight hours before his scheduled execution in 1998, a judge entered a stay to allow for a hearing on the question of whether Porter’s IQ was so low that he should not be executed.

After the stay was entered, the case against Porter began to unravel when a key prosecution witness signed an affidavit saying that he lied under oath during the trial. In early 1999 an inmate in state prison admitted that his uncle and he “took care”of Green and Hillard because of a drug debt. Finally, a private investigator working on the Porter case with a Northwestern University journalism professor and his students obtained a videotaped confession from the uncle acknowledging that he had committed the murders.¹⁶

The Porter case quickly came to symbolize what death penalty opponents had long claimed about rampant problems in the administration of capital punishment, and it spurred calls for change. Newspaper editorials, the Illinois State Bar Association’s Section on Criminal Justice, and many public officials called on Ryan to immediately stop all executions and launch a thoroughgoing review of the capital punishment system in Illinois. Yet Ryan at first refused. Instead, a spokesperson for the governor noted at the time of Porter’s release that Ryan would “review death penalty case[s] on a case-by-case basis, just as the Supreme Court does, and will make an appropriate decision on each at an appropriate time.”¹⁷

Ryan’s initial reaction to the Porter case echoed his predecessors’ reactions to earlier exonerations. As his spokesperson put it, “I know people use these reversals as an argu...

Table of contents

• Table of Contents
• Acknowledgments
• CHAPTER 1 Mercy, Clemency, and Capital Punishment the Illinois Story
• CHAPTER 2 Capital Clemency in the Twentieth Century Putting Illinois in Context
• CHAPTER 3 The Jurisprudence of Clemency What Place for Mercy?
• CHAPTER 4 Governing Clemency From Redemption to Retribution
• CHAPTER 5 Clemency without Mercy George Ryan’s Dilemma
• CHAPTER 6 Conclusion On Mercy and Its Risks
• CONFRONTING MERCY’S RISKS
• Appendix A George Ryan:“I Must Act”
• Appendix B Capital Clemency, 1900–2004 Commutations by State
• Appendix C Chronology of Capital Clemency, 1900–2004 Commutations by Governor
• Notes