Death Penalty Cases Test Fairness of Clemency : Mercy: Critics contend that the arbitrariness excluded from sentencing permeates the process. Supporters say the system protects against executing the innocent.

At the end of the long walk to the gallows or the electric chair, after years of legal appeals and deliberations, death finally comes. Or not--if a condemned inmate receives the gift of mercy.

Is the clemency system fair or just? Should it be? Consider a few contrasting cases:

* Last year, Roger Keith Coleman was executed in Virginia despite claims of innocence and of overlooked evidence.

* A year earlier in Ohio, Rosalie Grant, convicted of killing her two children, had her death sentence reduced to life because of doubts about evidence and because of her possible postpartum syndrome.

* In 1990, William Neal Moore, always remorseful over the Georgia killing he admitted committing while drunk, was spared after the victim’s family joined in pleas for clemency.

* Next month, a reprieve is due to expire for Texas Death Row inmate Gary Graham, who is fighting to present new evidence he says will exonerate him; he could get a new execution date, his third this year.

Though courts have tried to remove unconstitutional arbitrariness from sentencing in capital punishment cases, recent executions and commutations have brought renewed charges of another kind of capriciousness.

Supporters of the system say that clemency--commutation from death to a life sentence--adds an element of fairness to execution. Earlier this year, the U.S. Supreme Court called it the justice system’s “fail-safe,” ensuring innocent people are not executed.

But critics say the gift of mercy is not offered fairly. Death penalty opponents note that governors commute sentences far less frequently than in the past, and contend that these life-and-death decisions sometimes are treated with an eye to politics, since most voters favor capital punishment.

“Unfortunately, I think politics is the most important consideration in a governor’s mind, and often may be the only consideration,” said former New Mexico Gov. Toney Anaya, who touched off angry protests by commuting the sentences of all five Death Row inmates in his state seven years ago.

Another ex-governor, Jim Martin of North Carolina, disagrees.

“I was not going to let an innocent man die; I was not going to let a guilty man go free,” he said, explaining his lengthy review process, which involved staff research, his own reading, and meetings with advocates for the condemned, victims’ family members and others.

“I’d reach a decision, I think it’s fair to say, prayerfully,” he said.

Martin denied clemency in three cases and granted it in one. The latter was one of only two death penalty commutations in the nation last year.

Anaya’s five commutations, prompted by his opposition to capital punishment, were the only ones in 1986.

Of 70 clemencies granted since the the death penalty was restored in 1976, more than half, 41, were for “judicial expediency,” to save a state time and expense after court rulings that would have required new sentencing proceedings, according to death penalty scholars Michael Radelet and Barbara Zsembik. Only 29 were for humanitarian reasons, the University of Florida sociologists say.

More than 2,700 inmates remain on Death Row in the United States, a result of the slowdown in both commutations and executions.

Since the death penalty was reinstituted, 204 executions have been performed, including 31 last year. But in the 1930s, an average of 167 were carried out annually.

“A lot of the clemencies in those days came about . . . because juries didn’t have any choice,” and governors found mandatory death sentences sometimes did not fit the crimes, said Hugo Bedau, a death penalty scholar at Tufts University in Massachusetts.

The decline in recent decades--from about 18 clemencies a year in the 1960s, to six or fewer on average in the 1980s--is due partly to governors’ perception that constitutional protections for the condemned have been strengthened and that juries and appellate courts are “doing their jobs,” he said.

But politics is a big factor too, Bedau argued. Governors, he said, “are scared to death about appearing to be soft on crime.” After bruising law-and-order campaigns in some states, clemency would be “political suicide,” he said.

While governor of Arkansas, Bill Clinton left the presidential campaign trail to be in his state for the January, 1992, execution of Rickey Ray Rector, a brain-damaged cop killer who was the subject of a concerted clemency campaign. Clinton turned him down, some said to appear tough on crime.

A year later came the Supreme Court’s “fail-safe” ruling.

In May, 1993, Texas executed Leonel Herrera, who claimed that new evidence proved his late brother had committed the murder for which he was condemned.

In rejecting Herrera’s appeal four months earlier, Chief Justice William Rehnquist wrote for the 6-3 majority that “a claim of ‘actual innocence’ is not in itself a constitutional claim” to be considered by federal courts.

Such a claim, and post-trial evidence, can best be weighed by those who have clemency power, he said, referring to that power as the justice system’s “fail-safe.”

In dissent, Justice Harry Blackmun called the possible execution of a person who can show he is innocent “shocking to the conscience” and “perilously close to simple murder.”

Anaya agrees. Arguing that courts should be able to weigh post-trial innocence claims based on new evidence, the former governor said: “I don’t think an individual’s constitutional rights should be dependent on the politics, the attitudes, the whims of whoever’s in the governor’s office at a particular time.”

Radelet, the sociologist, scoffed at the “fail-safe” reasoning.

“It’s a cynical misreading of the modern practice of clemency. There is no clemency in Texas, Florida and Louisiana that amounts to any type of real review process,” he said, singling out the three states that perform the most executions.

Officials in those states say he is wrong.

Florida’s review procedures are extensive, said Carolyn Snurkowski, chief of capital appeals in the attorney general’s office. The state provides a lawyer for the petitioning inmate, and victims’ families can present evidence, she said. Clemency is granted by a vote of the governor and at least three Cabinet members.

Harry Green, general counsel for the Texas Department of Criminal Justice’s pardons and paroles division, said information submitted by the inmates seeking clemency is reviewed--along with material from trial officials and others--before the state pardons board recommends or rejects clemency.

A group of lawyers and former judges in Texas recently urged changes in the state’s procedure, saying there is no clear policy for the pardons board to deal with clemency requests when new evidence surfaces more than 30 days after trial.

“The clemency process, as it now exists in Texas, as in most other states, is sorely inadequate to the task that the Supreme Court has thrust upon it,” the lawyers said.

The exercise of clemency “is idiosyncratic at best, and arbitrary at worst,” Radelet and Zsembik wrote in an analysis that appeared in the University of Richmond Law Review.

“Overall,” they wrote, “it seems to add, rather than subtract, an element of luck to the ultimate decision of who ends up being executed.”

But death penalty supporter Ernest van den Haag argues vehemently that the system should not be tampered with.

“It can never be regulated by law,” said van den Haag, a retired professor of jurisprudence and public policy at Fordham University in New York. “It’s supposed to be arbitrary and capricious.”