By: Michael Olson
Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
Alexander Hamilton, Federalist No. 74.
Executive clemency, or the act of the chief executive granting a person who has been convicted of a criminal offense relief from a state ordered sentence or punitive measure, has a long history of use within the United States. Historians trace its first use, then known as a “prerogative of mercy”, to the 7th century during the reign of King Ine of Wessex but its formal use in the United States began shortly after its inception as an independent nation. George Washington used the first federal executive act of clemency to pardon those who participated in the Whiskey Rebellion of 1795. State Governors also maintain the power to grant clemency to those convicted of a state crime and since 1976, state Governor’s have granted clemency to 293 individuals.
Modern political discourse has divided many issues, including clemency and the death penalty, into a left and right dichotomy, with disdain for the practice on the left and unfettered support on the right. However, many conservative commentators have argued that the death penalty is a perversion of true conservative values. Arthur Rizer and Marc Hyden of the R-Street Institute argue, in the American Conservative, that “the closer conservatism remains to its core values, the more credibility it brings to the table . . . [i]f conservatives want to convince others that a smaller, more nimble government is best, than those values should be reflected in all policy areas, including the death penalty.” Further, according to the commentators, “the Founding Fathers explicitly rejected the notion that government is benign . . .” and, “skepticism of state power is at the heart of the American identity and the conservative philosophy. . . .” Therefore, “[conservative’s] suspicion about government should not end at the criminal justice system.”
Other leading conservatives agree, including former Arkansas Governor and GOP member, Winthrop Rockefeller, who wrote in the Catholic University Law Review, after commuting the sentences off all fifteen men on death row in Arkansas:
Executive clemency has served as a legitimate and effective instrument of change in the past. Looking at the monumental backlog of condemned humanity on the death rows of America today, I believe that executive clemency can lead to a great step forward in human progress. The challenge is to defer the meaningless destruction of human life; and then to advance toward that hour when we finally put aside the dehumanizing notion that the solution to the problem of violent crime is to inflict ourselves the ultimate violence of which man is capable.
Modern conservatives have taken up this issue, framing it not only as a humanitarian crisis, but a budgetary one as well. A Nebraska legislator argued that Nebraska spent an estimated 100 million dollars on death penalty cases and have only executed three individuals since 1976. Further, in Oklahoma, a capital-case costs 320% more than a non-capital case during the pre-trial, trial, sentencing, and post-sentencing appeal phases. Meanwhile, holding a death row inmate costs, on average in the United States, $122.66 per day, while holding inmates in the general population costs, on average, $90.26 per day. Finally, the death penalty is more expensive in almost every aspect than simply incarcerating a prisoner for the entirety of his or her life.
These appeals to conservatism have made death penalty legislation a hot button item in state legislatures. From 2000 to 2016, the number of GOP legislators who have sponsored death-penalty-repeal bills have risen by a factor of ten. In fact, in 2017, nearly one in three of all state death-penalty-repeal bills were sponsored by Republicans. This conservative push has traveled upstream to the State Governor’s granting clemency as well. John Kasich of Ohio granted more clemencies than all other death penalty state Governors combined during his time as Governor. He granted clemency to seven individuals, including Shawn Hawkins and Arthur Tyler, who had serious questions about their guilt raised, Joseph Murray and Raymond Tibbets, who were abused as children, and John Eley and William Montgomery, who had limited mental capacity. Finally, Ronald Post was granted clemency because his lawyer made sloppy mistakes and dubious decisions during his capital trial.
Governor Kasich is not alone among conservative executives. In Arkansas, Governor Asa Hutchinson granted clemency for Jason McGehee, after considering “many factors” including “the entire trial transcript, meetings with members of the victim’s family and the recommendation of the Parole Board. In addition, the disparity in sentence given to Mr. McGehee compared to the sentences of his co-defendants was a factor in my decision, as well.” Likewise, former Kentucky Governor Matt Bevin, commuted the sentence of Gregory Wilson, after stating “to say his legal defense was inadequate would be the understatement of the year.” The Judge who presided over Wilson’s trial called it “one of the worst examples I have ever seen of the unfairness and abysmal lawyering that pervade capital trials.”
On October 27, 2021, the Oklahoma Pardon and Parole Board recommended that the death sentence of Julius Jones be granted clemency. Jones’ fate now lies on the desk of Governor Kevin Stitt, who is expected to make a decision regarding clemency before Jones’s scheduled execution on November 18. Will Governor Stitt remain close to his conservative values and grant clemency? Will he follow in the footsteps of other leading conservative Governors and state lawmakers in addressing the injustice that arises from death penalty cases? In the words of Winthrop Rockefeller, “essential at our moment in history is a greatly broadened understanding and acceptance of the fact that executive clemency, far from being an extra legal device, is an intricate and necessary part of a fair and impartial system of justice.”
