Welcome to Hell Index | Sonoma County Free Press Home Page |Columns|Features

Last revised: February 22, 1999

Be merciful to me, O God
Because of your constant love.
Because of your great mercy
Wipe away my sins!
Wash away all my evil
And make me clean from sin!
---The neck verse

For centuries, this bit of sectarian grace from Psalms 51 could save you >from a long drop on a short rope or some other form of capital punishment. In the US, prior to 1827, a condemned person could read this verse or recite it in a judicial act codified as the "Benefit of Clergy", which acted as a self-saving form of commutation from a death sentence. The Benefit of Clergy was an exception to the power of the ruler and originally was instituted to save clerics and other literate persons from execution. As more and more poor whites and slaves exercised it in early America, it was seen as being abused and fell into disfavor, finally being abolished by the ruling class.

The power of clemency then rested with the executive branch. Much like Pontius Pilate's act of mercy towards Barabas, the power became politic and began to serve political ends rather than humanity. Pilate set Barabas free in a skillful maneuver to quell a public disturbance while at the same time executing Jesus to satisfy a Roman political end. We now have a system of commutation in America that is, as former governor Edmund G. Brown, Sr. of California described it, "awesome and ultimate", not unlike that of Pontius Pilate's power in 1st Century Judea.

Like most states in the US, the California Constitution vests the power of clemency in the office of the executive. Article V Section 8 reads:

Subject to application procedures provided by statute, the governor, on conditions the governor deems proper, may grant a reprieve, pardon and commutation, after sentence, expect in cases of impeachment.

Of course, the power is not without caveat. Reading further, we find:

The governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of Supreme Court, four judges concurring.

Obviously, this constitutional caveat was added to prevent abuses of the power by the executive, as historically governors (and presidents) have often exercised it contrary to the interests of society, basing the decision to grant or deny clemency on campaign promises to be "touch on crime" and enforce the death penalty--forgetting in their quest for power that, as Hamlet pointed out, "the less they deserve, the more merit is in your bounty." Despite the caveat, the lack of standards in the clemency process has made it a mockery in modern American jurisprudence. Elected officials have bowed to political experience as guidance in this matter, much to the detriment of our system of justice.

It is political suicide for any office seeker to profess his or her opposition to capital punishment. The litmus test of who is for or against capital punishment has now been surpassed by one of who can kill the most the fastest. The lack of principled standards governing the exercise of clemency has not led to wholesale commutations, but to the opposite. It is quite evident that political considerations have eroded the function of clemency.

Even evidence on innocence or doubt about the guilt of a particular individual, which should trigger a serious consideration of clemency, no longer holds water in the political climate surrounding capital punishment today. While the US Supreme Court considers executive clemency the "fail-safe" remedy for claims of innocence, it does not seem to preclude the execution of an innocent person as constitutional!

One might believe that in our system of justice--which charges all officers of the court to seek the truth--there would be no innocents convicted or condemned, but even the truth has been twisted by political whim and caprice. Contrary to the clichÈ that all prisoners claim they are innocent, at least some of these claims may be true. In their book In Spite of Innocence, Radelet and Bedau identify 23 cases of innocent people executed in the twentieth century. Studies by conservative criminologists in this same period have shown that at least 350 individuals have been erroneously convicted of a capital crime; 73 people have been released from death row between 1970 and 1993 on evidence of their innocence after their initial conviction and condemnation. It is conservatively estimated that 6,000 Americans are convicted annually of serious crimes they did not commit!

The figures on which these criminologists base their findings indicate that there may be at least 16 innocent persons among the 3,365 people on Death Row at the beginning of 1998. In the haste to execute these people through political, legislative and judicial fiat, an innocent person will almost certainly be put to death.

Clemency, freed from political pressure and properly exercised, could prevent such gross miscarriages of justice, but is clemency in such instances "mercy" or a "right"? Shouldn't clemency extend to the guilty as well? Any system of clemency should include the institution of justice--neutral uses to instill some legitimacy to its exercise. Today, even when an executive clearly sees a need to right a wrong or feels that an act of compassion is in order, he/she realizes that the failure to grant clemency is less of a problem than granting it as a matter of political expedience.

Most governors employ a filtering system in their clemency process. A committee or members of the prison parole authority act as the filters (handpicked by the executive and unlikely to go against the executive's desires in these matters), who lend the process a mask of fairness. It would justice and our society better if these preliminary filtering bodies were freed from politics and comprised of a broad spectrum of professionals and interested citizens, insuring that minorities and both genders are represented, as well as those who have a stake in the outcome.

In the California process employed in at least four cases thus far, the condemned human being makes a formal application for clemency to the governor, then a public hearing is held in which interested parties may address the panel chosen from the State Board of Prison Terms political appointees. To my knowledge no face-to-face appearance occurs between the condemned man or woman and the board or governor. He or she is relegated to pleading for mercy on paper, a precarious position at best.

After all is said and done, the governor holds a press conference and denies the application for clemency, usually reciting the prosecutorial view of the facts of the crime and his own ideology about capital punishment, reaffirming his omnipotent power of life and death, and cloaking his self-serving motivations in the guise of public good.

I add, in conclusion, that there is no right to clemency, nor does it appear that any real sense of due process is involved. The decision is determined solely by the executive and any statutes that might apply, none of which denigrate the fact that death row prisoners are begging for their lives after many years of unsuccessful formal litigation. In the face of impending doom--just days or hours away--they are forced to their knees in subjugation before a political entity they may well despise. The tentacles of politics and political bias have permeated the process of clemency so deeply that seeking clemency is a futile effort and a meaningless ritual to the condemned, a final humiliation before extermination.

In the era of just desserts, privilege, retribution, and vengeful justice, mercy has become strained and it no longer drops from heaven like a gentle rain. After close to two decades of observing the politics of death from my death row cell, I have concluded that no political animal deserves the privilege of weighing the worth of my life. I will forego this final degradation and welcome the needle's point.

For comments you may write:
Steven King Ainsworth
C-13201 4E81L
San Quentin Prison
San Quentin, CA

---

Send Email to Charla Greene at Welcome to Hell

Sonoma County Free Press Home Page . Columns . Features . About the Free Press . Letters to the Editor . Supporters