Mercy by the Numbers: An Empirical Analysis of Clemency and its Structure
Empirical Legal Research Working Paper No. 02-01
Posted: 5 Aug 2002
Date Written: August 2002
Clemency is an extrajudicial measure intended to both enhance fairness in the administration of justice, as well as allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant characteristics, political factors, and clemency's structure on clemency decisions. The results suggest that although a defendant's race and ethnic origin do not influence clemency, gender does play a role as women are far more likely than their male counterparts to receive clemency. Analyses of political and structural factors point in different directions. Political factors such as the timing of gubernatorial and presidential elections and a governor's lame-duck status do not systematically influence clemency. However, how states structure clemency authority makes a difference. Clemency grants are more likely in states that vest authority in administrative boards than in states that vest authority in the governor. Regionality and time are also important as clemency grants are less likely in Southern states and declined after 1984. Overall, these mixed results contribute to a critique that clemency decisions are arbitrary and inconsistent. Thus, important questions regarding fairness that plague earlier aspects of the death penalty process persist to its final stage.
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