Rethinking the Timing of Capital Clemency

66 Pages Posted: 10 Sep 2013

Date Written: September 10, 2013


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.

Keywords: capital punishment, death penalty, commute, commutation, clemency, habeas, habeas corpus, information cascade, closure, finality

Suggested Citation

Gershowitz, Adam M., Rethinking the Timing of Capital Clemency (September 10, 2013). 113 Michigan Law Review, 2014, Forthcoming , William & Mary Law School Research Paper No. 09-258, 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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