Rethinking the Timing of Capital Clemency
Adam M. Gershowitz
William & Mary Law School
September 10, 2013
113 Michigan Law Review, 2014, Forthcoming
William & Mary Law School Research Paper No. 09-258
This article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals – years or even decades before the habeas process was concluded. Yet, when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation. This article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm the victims’ families by delaying closure for years. And placing clemency at the very end of the process creates an information cascade that makes it harder for governors to grant clemency in meritorious cases. This article therefore argues for a threshold clemency determination in capital cases at the conclusion of direct review, before any state or federal habeas litigation has begun.
Number of Pages in PDF File: 66
Keywords: capital punishment, death penalty, commute, commutation, clemency, habeas, habeas corpus, information cascade, closure, finalityAccepted Paper Series
Date posted: September 10, 2013
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