The Diffusion of Responsibility in Capital Clemency

43 Pages Posted: 9 Nov 2007


The Supreme Court has described executive clemency as the failsafe of the criminal justice system. Yet, when it comes to capital clemency, it is not clear who is responsible for that failsafe. The Supreme Court has refused to regulate the clemency process because it is a matter for the states' chief executives. At the same time, some governors refuse to take responsibility for making clemency determinations on the grounds that the execution process belongs entirely to the courts or because the state's pardon board should be responsible. In short, capital clemency is plagued by a dangerous diffusion of responsibility problem that might allow questionable executions to go forward because none of the key actors believe it is their responsibility to stop them. This article offers a modest solution to remedy the diffusion of responsibility by having the judiciary impose procedural due process safeguards at the clemency stage of the criminal justice process. In imposing procedural safeguards, not only would the judiciary be taking procedural responsibility for capital clemency, but it also would force the final decision-makers - governors and pardon boards - to take responsibility for the substantive decision of granting or denying capital clemency.

Keywords: clemecy, pardon, pardon board, diffusion of responsibility, execution, death penalty, capital punishment

Suggested Citation

Gershowitz, Adam M., The Diffusion of Responsibility in Capital Clemency. Journal of Law and Politics, Vol. 17, No. 669, 2001, Available at SSRN:

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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