AN OPEN LETTER TO GOVERNOR RYAN

December 30, 2002

Dear Governor Ryan:

Each signer of this letter is a professor of law affiliated with an institution of higher learning in the United States. We take the liberty of writing to you to share our views concerning the use of your clemency power under the Illinois Constitution to correct the many injustices you and others have identified in the Illinois capital justice system.

Like many others around the country, we have followed the public discussion concerning the possibility of your granting commutations of some or even all of the Illinois death sentences because of concerns about the reliability of the findings of guilt and about the appropriateness of the sentences in those cases. Some have argued that there are strict limitations on your clemency power and that you may consider commutation only on a case by case basis without regard to problems of systemic injustice that may be generally reflected in the petitions before you. We feel compelled to share with you our considered judgment that, in our country, the power of executive clemency is not so limited. To the contrary, where circumstances warrant, executive clemency should be and has in fact been used as a means to correct systemic injustice.

We understand that the death row clemency petitions pending before you raise serious and difficult issues concerning the systemic failures of the Illinois capital justice system. They raise the question whether the ultimate punishment should be inflicted on any person convicted by a system that is known to have sentenced 13 innocent men to death and that obviously is profoundly in need of reform – to correct problems of poor lawyering, unreliable evidence and police and prosecutorial misconduct that have plagued the system. We do not presume to advise you whether these considerations warrant blanket clemency to all on death row. Indeed, the signers of this letter have different views on that question. But we all agree that it is the proper role of a governor to assess clemency petitions and to grant commutations and pardons when the circumstances so justify, even if that means a general grant of clemency to remedy systemic problems.

The clemency power traditionally has been used not only to correct injustices in individual cases but also as a response to problems in the systemic application of the law. It can promote healing after issues of great divisiveness have been resolved, as when President Carter gave amnesty to draft resisters. It can also strengthen morale during times of strife, as when President Lincoln reduced the sentences of Union soldiers charged with desertion. Properly used, the clemency power benefits not only the individual, but society as a whole. As the United States Supreme Court recognized in 1927, clemency is the “determination of the ultimate authority that the public welfare will be better served by inflicting less than the judgment fixed.” Biddle v. Perovich, 274 U.S. 480, 486 (1927).

It is no accident that clemency power is vested in the executive branch of government. The executive’s use of clemency is a vital aspect of the separation of powers. The legislature enacts penal laws, the courts apply them, and the executive branch enforces them by carrying out the sentence imposed by the courts, unless the executive decides that a grant of clemency is appropriate. Thus, executive clemency is the last check in a system of checks and balances among the three branches of government. It is an integral part of that system. Because the executive is the last actor in our system of law, it is only sensible that he should be charged with the final determination of whether the sentence he is about to carry out serves the interests of justice and the people he represents. Arkansas Governor Winthrop Rockefeller, who commuted the sentences of all those on death row in that state, later wrote that “Executive clemency, far from being an extra legal device, is an intricate and necessary part of a fair and impartial system of justice.” Winthrop Rockefeller, Executive Clemency and the Death Penalty, 21 Cath. Univ. L. Rev. 94, 102 (1971). 

The framers of the United States Constitution believed strongly in the executives’ critical role in exercising clemency power. They rejected a proposal that would have required the President to share the power with the Senate. Alexander Hamilton wrote that “humanity and good policy”dictate that the clemency power “should be as little as possible fettered or embarrassed.” If “ready access” to clemency were not available, Hamilton cautioned, justice would “wear a countenance too sanguinary and cruel.”

The United States Supreme Court has similarly stressed the fundamental role that executive clemency plays in the criminal justice system. Indeed, one of the very reasons that the courts refuse to consider certain claims of new evidence and other issues is the courts’ view that executive clemency is the ultimate safeguard against error and injustice. See generally Woodard v. Ohio Adult Parole Authority, 118 S. Ct. 1244 (1998); Herrera v. Collins, 506 U.S. 390, 411-412 (1993).

Clemency has often been exercised to remedy systemic defects in the application of a criminal law generally or to a specific group. For example, President Abraham Lincoln exercised clemency to remedy systemic defects in the application of military law to a particular group when he pardoned 264 Dakota Native Americans sentenced to death in1862 following military trials as a result of a conflict over land in Minnesota. Later, when informed that he would have won re-election by a greater margin had he not pardoned the Dakota, Lincoln responded, “I could not afford to hang men for votes.” David A.Nichols, Lincoln and the Indians: Civil War Policy and Politics, University of Missouri Press (1978). 

Similarly, Thomas Jefferson, shortly after becoming President, discharged “every person” being punished or prosecuted under the Alien and Sedition Act, which he considered an unconstitutional law.

Governor Richard Celeste’s grants of clemency to battered women in Ohio is another example of a classbased clemency in response to a systemic problem. The women who received clemency had been precluded under Ohio law from introducing expert testimony on the development and psychological impact of battered women’s syndrome. See Linda L. Ammons, Discretionary Justice: A Legal and Policy Analysis Of A Governor’s Use of the Clemency Power in the Cases of Incarcerated Battered Women, 3 Journal of Law and Policy 1 (1994).

Along these same lines, Governor George W. Donaghey of Arkansas made a grant of mass clemency to 396 people who has been sentenced to serve under the convict labor system, the infamous “chain gang.”  Kathleen D. Moore, Pardons, Justice, Mercy, and the Public Interest 176 (1989).

Fifty years later, President John F. Kennedy pardoned over one hundred minor drug offenders then serving mandatory minimum sentences. See B. Douglas Robbins, Resurrection From a Death Sentence: Why Capital Sentences Should be Commuted upon the Occasion of an Authentic Ethical Transformation, U. Pa. L. Rev. 1115, 1180, n. 32 (April, 2001).

In the particular context of capital punishment, the practice of commuting death sentences by clemency has a long and honorable history and has taken a number of different forms. In England and America, thousands of condemned men and women have been saved from execution by grants of clemency. In eighteenth and nineteenth century England, the increasing use of the death penalty as a punishment for crime was mitigated by an equally dramatic rise in commutations. Even as late as the nineteen sixties, the practice remained very common. From 1960 to 1970, 261 people were executed in the United States, while 204 received some form of clemency. Michael A.G. Korngold, Todd A. Noteboom, & Sara Gurwitch, And Justice for Few: The Collapse of the Capital Clemency System in the United States, 20 Hamline L. Rev. 349, 353, n. 58, n. 59 (Winter 1996).

Several governors who have come to view the death penalty itself as defective have commuted the sentences of all death row inmates. Tony Anaya, Governor of New Mexico, commuted that State’s entire death row in November 1986. Winthrop Rockefeller, Governor of Arkansas, did the same in December 1970. Oregon Governor Robert Holmes commuted the death sentences of every condemned prisoner who came before him. Lee Cruce, Governor of Oklahoma from 1911 to 1915, commuted twenty-two death sentences to life imprisonment because of his opposition to the death penalty. In the nineteen fifties and sixties, Endicott Peabody of Massachusetts and Robert D. Holmes of Oregon also commuted all death sentences they reviewed.

Even governors who have not commuted all death sentences have adopted policies which, if applied to Illinois’ inmate population, would result in the commutation of all or most of those currently slated for death.

Governors Alfred E. Smith and Herbert H. Lehman of New York, for example, commuted every case where at least one justice of the Court of Appeals had dissented from the affirmance of a death sentence.

In many of these cases, the decision to grant clemency has not been a popular one, but the Governors have nonetheless recognized that the moral imperative of judging clemency petitions on their merits trumps any political considerations. In June 1893, Governor John Peter Altgeld pardoned three men, known as the Haymarket Square Bombers, who were serving life sentences for setting off a bomb that killed seven police officers. Four others had already been hanged. Public sentiment ran high against the three. However, the trial had been held in an atmosphere of unfair publicity and bias, and there was serious doubt that any of the three had been involved in the bombing.

When asked to consider the grant of clemency, Altgeld said, “When I do examine it I will do what I believe to be right, no matter what that is. But don’t deceive yourself: If I conclude to pardon those men it will not meet with the approval you expect; let me tell you that from that day I will be a dead man.” Clarence Darrow, The Story of My Life (1932), p. 101. Altgeld’s pardon in that case is widely viewed as an act not only of courage but also of great wisdom.

You, and you alone, must decide whether to grant commutations to all or any of the men and women on your State’s death row. You have the benefit of many tools: the report of the Governor’s Commission on Capital Punishment, the counsel of your advisors, the inmates’ petitions, the prosecutors’ responses, your own conscience.

But as you travel your lonely road in the days ahead, we hope and pray that this letter, and the long tradition of clemency it describes, will be at least a signpost on your way to justice.

Sincerely,