Governors Shy From Clemency Power
By Kavan Peterson, Staff Writer
Outgoing Illinois Gov. George Ryan stunned the nation this month when he spared the lives of all 167 Death Row inmates and pardoned four by exercising the seldom-scrutinized power of executive clemency that governors in almost every state enjoy.
Only seven of the 23 other governors who stepped down this year granted pardons or commuted the sentences of prisoners in their final days in office. No other governor took on the controversy of capitol punishment, and those who commented on Ryan's blanket commutation said they would never consider such an act.
The power of executive clemency gives governors or pardon boards the authority to show leniency toward criminals by granting pardons or commuting prison sentences. A pardon usually erases a criminal record and restores civil rights and a commutation makes punishment less harsh.
The 164 men and three women on Death Row in Illinois who received a commutation still face life in prison. The four men Ryan pardoned were immediately set free, the first inmates ever to be pardoned off Death Row.
Gov. Ben Cayetano (D) of Hawaii issued more pardons than any other governor this year, granting 20 his final day in office and 78 pardons in 2002. He also commuted the 20-year sentence of a home-health caregiver who was convicted of manslaughter when a patient in her care died of bedsores in 1999.
After reviewing 109 requests, Wisconsin Gov. Scott McCallum (R) issued pardons on his last day in office to seven people, none of whom were incarcerated.
Tennessee Gov. Don Sundquist (R) granted six pardons and commuted four sentences before leaving office, in one case erasing a flight attendant's marijuana conviction to help protect her job under stricter airline security rules.
New Mexico Gov. Gary Johnson (R) issued five pardons before leaving office for charges ranging from marijuana possession to prostitution and aggravated assault.
In all, the governors of Hawaii, Michigan, New Mexico, Pennsylvania, South Dakota, Tennessee, and Wisconsin granted pardons to 41 people and commuted the sentences of at least six prisoners in their final days in office. Aside from Ryan's actions, clemency experts say this was a meager number, reflecting a growing reluctance among governors to show leniency to criminals.
"Clemency used to be more common earlier in the century, but now it's a politically difficult issue and (clemencies) have become rare for some governors," said Richard Dieter, executive director of the Death Penalty Information Center. "There's a hesitancy, a fear that this will make you look like you're soft on crime and you're siding against the victims."
For this reason, governors issue most pardons during their final days in office and many avoid the process altogether, Dieter said.
Outgoing Gov. Tony Knowles (D) of Alaska issued only two pardons during his eight years in office. Applicants for clemency in Alaska received a form letter from the governor informing them that clemencies take a long time to process and "are rarely granted," said Parole Board Director Laurence Jones.
Before leaving office last week, Pennsylvania Gov. Mark Schweiker (R) commuted the life sentence to time served of a man imprisoned for 20 years for selling a gun used to commit a murder. This was the first act of clemency in Pennsylvania since voters passed a constitutional amendment in 1997 that requires a unanimous recommendation by the Pardons Board before the governor can consider a case for clemency.
Kansas Gov. Bill Graves (R), New Hampshire Gov. Jeanne Shaheen (D), and Rhode Island Gov. Lincoln Almond (R) never once used their clemency power during their combined 24 years in office, governors' aides said.
Most of the other governors whose terms ended this month granted few, if any pardons or commutations while in office.
Legal experts say that the clemency power is an essential safeguard when the court system fails, such as when innocent people are imprisoned or sentenced to death. Some experts say governors also have an obligation to use the clemency power to show mercy when the courts have been too harsh or too slow to reform.
Margaret Love, former head of the pardon office in the Justice Department, said that governors have become too cautious of granting clemency.
"It is a sad comment on the current crop of politicians that most of them do not seem to understand that it is their job to take risks and correct mistakes or unjust outcomes in the legal system," Love said.
Love praised Ryan for emptying Illinois's Death Row after a three-year commission investigating capitol punishment documented systemic failures in the application of the death penalty.
Seventeen people sentenced to die in Illinois have been exonerated or pardoned while only 12 have been executed since the state resumed the death penalty in 1977.
Ryan, who did not run for a second term because of corruption charges pending against his administration, has been showered with praise by death penalty opponents and harshly criticized by lawmakers and victims' families.
None of his fellow governors have supported his action, and several condemned it.
Republican Gov. Bill Owens of Colorado said on ABC's Nightline' that Ryan's actions were "bad policy" and "undemocratic."
In a written statement, Owens said a governor's power to grant pardons or clemency should not be used to overturn or rewrite laws, but "to correct isolated instances where mistakes might have been made."
"What Gov. Ryan has done is make a de facto change in Illinois law, ignoring the considered decision of the juries and the will of the people as expressed through the legislature," Owens said.
Outgoing Gov. Parris N. Glendening (D) of Maryland, the only other governor who suspended executions pending a study of the system's fairness, also declined to follow Ryan's lead. Glendening issued no pardons before leaving office, and told The Associated Press, "I don't believe in midnight pardons."
Nebraska Gov. Mike Johanns (R) called Ryan's move a "shocking abuse of power," the Omaha World-Herald reported. California Governor Gray Davis (D) said he would not consider taking such action, as did Louisiana Gov. Mike Foster (R) and Missouri Gov. Bob Holden (D).
"What happened in this case was the governor proposed a bunch of reforms and the legislature didn't agree with him, so he used the clemency power to get his way, and it's because of abuses like that that many states have restricted the power of clemency," said Ken Scheidegger, legal director of the Criminal Justice Legal Foundation.
Thirty-three states give their governors exclusive and unconditional power to grant pardons or reduce prison sentences.
Five states Alabama, Connecticut, Georgia, Idaho and Texas- have stripped their governor of the power to pardon and established clemency boards, whose members are appointed by the governor.
In nine states Arizona, Delaware, Florida, Indiana, Louisiana, Montana, Oklahoma, Pennsylvania, Texas the governor can only consider clemency recommendations issued by a clemency board.
Governors in three states Nebraska, Nevada, Utah -- sit as a member of a pardoning board and clemency decisions are made in cooperation with other board members.
Illinois House minority leader Tom Cross (R) introduced legislation five days after Ryan's action that would restrict the governor's clemency power. The legislation would require the Prisoner Review Board to notify prosecutors and victims' families of clemency hearings, and to submit public recommendations to the governor before the governor grants clemency.
"We felt like this was a way within the framework of the Constitution to give the general public and the prosecutors some say in the process," Cross said.
The Illinois governor would still have the power to grant blanket clemency under this legislation, but only after each case had been reviewed with input from prosecutors and victims' families, he said.
Former pardon attorney Love argued that Ryan did exactly that in his review of Death Row cases and she cautioned against lawmakers infringing on the chief executives' constitutional power.
"What Ryan did will go down in history books as an absolutely textbook example of how and why to exercise the clemency power," she said.