Austin Sarat ScheerPost
The state of Georgia plans to execute Stacey Humphreys on September 16. He was convicted and sentenced to death for a double murder that occurred in 2003.
His case offers several examples of the serious problems that plague the death penalty system in this country, including one that generally draws little attention: the arbitrariness of the clemency process in capital cases. In some states, the governor has exclusive authority to grant pardons and commutations; in others, they can do so only with a positive recommendation from a body such as a Board of Pardons and Paroles.
In Georgia, the governor plays no role at all. The five-member Board of Pardons and Parole makes all clemency decisions. And, in his case, Humphreys wants the Board to follow its own rules, which it seems not disposed to do.
Wouldn’t seem like too much to ask. But so far it seems to be.
In July, Humphreys appealed to the United States Supreme Court, asking it to consider the following questions. “When the state departs from its own longstanding practice and procedures an arbitrarily burdens a capital clemency applicant’s likelihood of success in obtaining a commutation does it (1) deprived him of due process and (2) violate the Equal Protection Clause?”
Also, wouldn’t seem like too much to ask. But over the years, the Supreme Court has not had much to say about the clemency process in general or how it should work in capital cases.
Humphreys’ case is an example of what can happen in the absence of much guidance.
As he told the Court, “To obtain commutation of a death sentence to one of life imprisonment, a prisoner must secure a majority vote of the board: three sitting members must vote to commute. In the modern death penalty era, no condemned prisoner had his or her application for clemency decided by fewer than all five board members. The Georgia courts have cleared the way for Stacy Humphries to be the first.”
They have done so even though one of the Board members has recused herself, leaving the Board with only four members to hear Humphreys’ petition for clemency. That member, Kimberly McCoy, as the Death Penalty Information Center reports, was appointed to the Board “following 25 years as a victim advocate with the district attorney’s office…” She “served as the ‘guardian’ for victims’ families during Mr. Humphreys’ trial and ‘formed a very close bond’ with them….”
Last December, a Georgia trial court temporarily enjoined the Board from moving forward, “Until such time as the Petitioner can be afforded the standard, constitutionally mandated clemency hearing before the full Board.” Judge Robert McBurney wrote that “There is no harm more irreparable than death…If Petitioner is executed following a procedurally flawed clemency hearing, there is no re-do any court can order….
“One of the core principles of Georgia’s death penalty proceedings,” he added, “is that they should be conducted in a careful and orderly manner, given the stakes involved — making an order that affords the parties and the Court time to thoughtfully resolve this conflict of interest issue particularly appropriate.”
However, three months later, he changed his mind, ruling that the “Georgia Constitution does not in fact require ‘a full board every time.’” The Board is scheduled to hold a hearing on Humphreys’ case on September 15, with four sitting members.
But what Judge McBurney is allowing is a recipe for arbitrariness and unequal treatment, and should not be allowed in a case where someone’s life is on the line.
It would mean that Humphreys needs to win the votes of 75% of the Board’s members rather than the 60% he would need if the Board followed its own rules. Those rules say that it can grant clemency only if a “majority of its members” vote to do so, and, as Humphreys told the Supreme Court, even the Board’s counsel has acknowledged that “’a full board of five members is required to consider the clemency request of an offender sentenced to death. A majority of that board is required to render a decision….’”
Humphreys reminded the Supreme Court that, “The path of the Georgia courts have blessed creates two classes of Georgia death sentence prisoners…” Some will have their clemency petitions decided by a five-person board, others by fewer than five persons.
“There can be no rational basis,” for such differential treatment.
However, Humphreys has to contend with the fact that when the Court has addressed clemency, it has given presidents, governors, and boards a wide berth to exercise discretion in how they do what they do.
For example, in 1833, the Court described clemency as “an act of grace proceeding from the power entrusted with the execution of the laws…” It labeled clemency “the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended.”
Or, as Justice Stephen Field wrote in 1866, the president’s power to grant pardons and reprieves “Is unlimited…. This power of the president is not subject to legislative control… the benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.
Courts have said similar things about the clemency powers exercised at the state the clemency powers level. In 1998, the Supreme Court seemed to affirm that view.
Writing for the majority, Chief Justice William Rehnquist observed that clemency “decisions are committed, as is the Nation’s tradition, to the executive’s authority….(and) pardon and commutation decisions are rarely, if ever, appropriate subjects for judicial review.” He continued, “(T)he heart of executive clemency… is to grant clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations.”
However, four Justices argued that clemency applicants at the state level are entitled to “’minimal procedural safeguards.’” Justices Sandra Day O’Connor David Souter, Ruth Bader Ginsburg and Stephen Breyer suggested that because “a prisoner under a death sentence has a continuing interest in his life….that some minimal procedural safeguards apply to clemency proceedings.”
For example, “Judicial intervention might,” they noted, “be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”
But beyond offering examples, they did not say what procedural safeguards attach to capital clemency.
As Humphreys’ appeal explained, “(T)he precise floor established by minimal due process requirement has proven elusive. Outside of the requirement that a state avoid arbitrary procedures there has been little agreement on what does and what does not run afoul of Woodard’s holding.”
Because, in the last several years, the Supreme Court has made it so difficult for death row inmates to obtain redress through the judicial process, “the place that clemency occupies in the process of ensuring reliability in the capital sentencing process has shifted since Woodard. The need for robust clemency procedures in capital cases has mushroomed as the power of post-conviction litigation to correct miscarriages of justice has withered.”
Speaking about the Woodard decision, Humphreys noted, “While commutation might have been properly characterized as a unilateral hope at the time of the court’s decision… it is now the last and best chance to correct grave errors in our administration of the death penalty.”
Due process is always a key component in any system of justice, but never more so than in death cases, where it must be most robust and exacting. It is time for the Supreme Court to insist that it be delivered at every stage of the death penalty process, including in parts, such as clemency, that have traditionally been exempt from rigorous judicial scrutiny.
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