When Our System Fails Us: The Case for Independent Clemency Review

As the hands of time turn towards the scheduled execution of Stanley
“Tookie” Williams, Governor Schwarzenegger is faced with the most personally
and politically difficult decision a governor must face: whether to grant
clemency to a convicted murderer who has run out of judicial appeals. The
Governor’s decision will determine whether Stanley Williams lives or dies.

Regardless of the merits of Mr. Williams’ plea for clemency, we should
consider whether the governor really is the right person to make this life
or death decision.

No elected official – not even the Terminator–should have the power or
responsibility to determine whether a death row inmate is sufficiently
reformed to justify mercy. Because politicians are accountable to the
electorate, they must necessarily consider public opinion in their decision
making. When the stakes are high, as they are in the clemency process, a
completely fair and impartial decision is virtually impossible.

The case of Stanley Williams is the perfect example.

Advocates for and against clemency for Mr. Williams have waged an intense
and star-studded media battle as a way of increasing political pressures on
the governor. As a response to the intense media coverage, the governor has
agreed to meet with Williams’ lawyers, prosecutors, and others involved in
the case before making a final decision.

Many Capitol insiders, however, believe that Schwarzenegger’s decision is a
fait accompli regardless of the merits of Williams’ case. They argue that
after being swept in the November special election and marginalizing his
conservative base by appointing a Democrat as his top staffer, the Governor
cannot politically afford to grant clemency and appear soft on crime. Such a
move would further alienate conservatives as he prepares to run for
re-election.

Unless the Governor is willing to risk his political future on the fortunes
of Williams, his only viable option is to deny the petition. Therein lays
the systemic problem. Our clemency process gives an elected official the
power to make a life-or-death decision that may rest on factors other than
the merits of the petition being reviewed.

The specifics of Williams’ case notwithstanding, at least we should agree
that his last plea for justice be made free of political considerations.

One way to insulate our clemency system from political pressures is to
establish an independent clemency review board whose members have life
tenure and are removable only for cause. Members could be appointed by an
intermediate and neutral body such as the judicial council or,
alternatively, through some other non-partisan selection process. Although a
perfectly politics-free process may be unattainable, removing clemency
review from the hands of elected officials is a strong step in the right
direction.

The clemency board would also be required to hold public hearings before a
final decision is made. An open process will allow the press and the public
to evaluate the reasons why the board makes its decisions, a vast
improvement over the secretive method currently in place. Decisions would be
guided by clear and consistent legal standards subject to reversal only for
constitutional violations. Removing the unpredictability and irregularity of
clemency review is a critical feature of the independent board.

Our current system of executive clemency review is fraught with politics.

Establishing an independent clemency review board would be a substantial
improvement over the existing method. Clemency petitioners, as well as the
justice consuming public, deserve a legal system that ensures fair and
impartial decisions. Unfortunately for all of us, such a system will not be
in place for Mr. Williams.