Issue of Clemency Is Davis’ Most Difficult as Governor

Gray Davis is about to make his first life or death decision.

Sitting on his desk is a request for clemency from Jaturun “Jay” Siripongs, a Thai immigrant who has been on San Quentin’s death row for 15 years after being convicted of the 1981 murders of a Garden Grove market owner and her clerk. With the California Supreme Court having rejected his final appeals, Siripongs is scheduled to die at 12:01 Tuesday morning unless Davis intervenes.

Siripongs’ plea almost certainly will be just the first of many for the governor. California has the nation’s largest death row, with 526 inmates. And after years of delay, scores of those inmates have now started running out of appeals.

For each of them, clemency marks the end of the road.

In an earlier era, some 25% of all death penalty cases nationwide ended with a last-minute act of mercy by the governor. Now, governors rarely grant clemency.

The decision on whether to grant clemency is bound by almost no rules. In California and the 37 other states that have the death penalty, an individual facing execution has a right to apply for clemency. But a defendant’s rights largely stop there. In California, and most other states, the governor truly gets to play God.

It is, former governors say, the most difficult decision a chief executive faces.

“There is no ducking it,” said former Virginia Gov. L. Douglas Wilder, who granted three of 17 clemency requests between 1990 and 1993. “It’s awesome, and there are going to be recriminations whatever you do. You keep asking yourself: ‘Did I set the proper criteria? . . . Did I examine the evidence I should have? Should I have talked to people in the case?’ ”

“There are warring notions of clemency,” said Daniel Kobil, a professor at Capital University Law School in Columbus, Ohio, who has written several scholarly articles on the subject. “One is that it is just another level of appeal and the only reason to grant clemency is if there has been a [judicial] mistake. That is the narrow view that is in vogue today.”

The broader view, which Kobil favors, is that clemency should “look at a much wider array of factors and ask whether the punishment is deserved in light of all the circumstances--not just actual innocence.”

Public Demands, Political Realities

So far, Davis has said nothing in public about how he will handle these matters, and his aides have been tight-lipped. There has been speculation that it would be politically difficult for Davis to commute Siripongs’ sentence because the new governor took a strong stand in favor of capital punishment during his campaign last year.

Davis’ predecessor, Pete Wilson, turned down all five clemency requests he faced. He rejected a plea from Siripongs before leaving office, saying that Siripongs’ “callous crimes” were unmitigated and the murders “too brutal.”

Setting aside contentions that some of Siripongs’ constitutional rights were violated, Wilson said giving clemency to an inmate who had received basic due process of law would “set a precedent that would require that clemency be granted for virtually every death sentence.”

Siripongs’ attorneys argue that he has an unusually strong case for clemency. The Thai government, the husband of one of the victims, two jurors and a death row guard at San Quentin Prison have supported his bid. In an unusual move, former San Quentin Warden Daniel Vasquez has also asked Davis to spare Siripongs.

On Friday, Los Angeles’ Cardinal Roger M. Mahony added his voice, sending a letter to Davis, who is Catholic, asking him to “consider the moral and ethical issues raised by the use of the death penalty” and to “demonstrate leadership” by granting clemency.

Mahony stressed that commuting Siripongs’ sentence to life without the possibility of parole would provide “substantial safeguards for society and levels a grave punishment against the accused.”

Defense lawyers Michael Laurence, Gary Sowards and Linda Schilling assert that although Siripongs did go to the market and commit a robbery, he did not commit the murders. They say there is evidence that another person was the killer. As an alternative to full clemency, Davis could grant a temporary reprieve to allow the lawyers to conduct more forensic tests to prove that contention.

Davis is confronting his first dilemma about death little more than a week after Pope John Paul II personally persuaded Missouri Gov. Mel Carnahan, a death penalty supporter, to call off the execution of triple murderer Darrell Mease and commute his sentence to life in prison without the possibility of parole.

Carnahan’s dramatic move notwithstanding, there is no sign that governors are likely to start commuting large numbers of death sentences for the more than 3,500 people on death row nationally.

In the 23 years since the U.S. Supreme Court reinstated capital punishment, there have been 512 executions and just 39 commutations--including one issued Friday in Arkansas. Even that number is misleadingly high. Of the 39 commutations, 13 were issued by only two governors, Toney Anaya of New Mexico and Richard F. Celeste of Ohio, who issued mass commutations as they left office.

Anaya denounced the death penalty to explain his action; Celeste cited concerns that the punishment was being disproportionately used on blacks.

Before the 1970s, governors used their clemency power as a sort of safety net to ameliorate miscarriages of justice--fixing legal errors that were discovered too late for an appeal, or exercising mercy for a killer who had dramatically transformed himself while in prison.

In the 1930s, New York Gov. Herbert Lehman was sufficiently skeptical about the death penalty that if any judge on the state’s highest court had issued a dissent in a case in which the death penalty was upheld, Lehman would commute the term to life.

In California, from 1959 to 1966, former Gov. Edmund G. “Pat” Brown Sr. commuted the death sentences of 23 killers, permitting 36 other people to die in the gas chamber.

In his memoir, “Public Justice, Private Mercy: A Governor’s Education on Death Row,” Brown explained with pride how he commuted the death sentence of a psychologically troubled law student who had killed his lover. After being rehabilitated, the man was paroled and lived a productive life.

On the other hand, Brown acknowledged that he sometimes considered factors beyond the merits of a particular case. Years after denying clemency to one murderer, Brown wrote that he was still troubled by a key reason for his decision: his desire to avoid alienating a rural legislator whose vote he needed to win passage of a law to raise the minimum wage for poor farm workers.

By the time Brown’s successor, Ronald Reagan, came into office in 1967, controversy about the way capital punishment was being administered had led to a de facto moratorium on most executions in the state. Reagan faced only two clemency requests in his eight years as governor--granting one.

Defense Attorneys Face Uphill Battle

Now, however, defense lawyers say it is virtually impossible to get clemency unless they can make a strong case that their client is in fact innocent.

“For the most part, when we look back on this era, we will see this was the nadir of clemency,” said George Kendall, who heads the NAACP Legal Defense Fund’s death penalty unit.

“When you look at the rest of the century, clemency was seen as a vital part of the review process in capital cases. But since crime has become so politicized, the clemency rate has dropped dramatically,” Kendall said.

Richard Burr, a Houston-based defense lawyer who has been doing death penalty work for two decades and has had clients executed in seven Southern states, was, if anything, more gloomy. “My experience is typical: You submit papers and you get a denial.”

Burr said the only governor who ever gave him an audience was Bill Clinton. “He seemed very positive by the time we left the governor’s mansion, but the next day I heard him say on the radio that he saw no reason to intervene and that [my client] should be executed.” As governor, Clinton allowed four executions and issued no commutations.

Death penalty critics such as Southern Methodist University law professor Victoria J. Palacios, a former member of the Utah Board of Pardons, say two principal reasons have led to the dramatic drop in the frequency of commutations.

The first is the apparent perception of governors that capital punishment is administered more equitably than it was before 1972, when the Supreme Court temporarily outlawed it as arbitrary and capricious. Perhaps, too, governors fear alienating voters who, polls say, favor the death penalty by a 3-1 margin.

But the restricted view of clemency, the critics say, has led to a Catch-22. For just as governors have cut back on clemency, saying that problems in death cases are being handled in the courts, the Supreme Court has cut back on appeals, saying that problems can be handled by clemency.

In one key case, the high court restricted appeals even when the inmate claimed he had evidence of innocence. “This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim,” Chief Justice William H. Rehnquist wrote for the court.

The appropriate path, he said, is clemency, which he described as a process “deeply rooted in our Anglo-American tradition of law, and . . . the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”

In that case, the inmate, Texas prisoner Leonel Herrera, promptly lost his clemency bid and was executed.

Texas has had 167 executions and only one commutation since 1977. That record has led defense lawyers to challenge Texas’ clemency procedure in court. The challenge relies on a 1997 Supreme Court decision in which a majority of the justices held that if a state has a formal clemency process, officials are obliged to provide some minimal due process.

The justices did not spell out just what a state is required to do. State lawyers have been successful in defending Texas’ system, in which an 18-person board passes on clemency petitions. Texas law does not require the board to produce any written record of its proceedings, which are held in secret. Pressed by U.S. District Judge Sam Sparks to identify the standard for granting clemency, a state lawyer referred to a well-known Supreme Court statement about pornography: “I can’t define it, but I know it when I see it.”

Critics of the death penalty say that sort of approach merely adds to the randomness of a process that metes out death to some killers, while sparing the lives of others. Death penalty foes note that if John Paul II had arrived in Missouri just two weeks earlier, which he had originally planned to do, another man, who was executed that week, might have been spared rather than Mease.

“It seems with capital punishment,” Houston attorney Burr said, “everything is arbitrary, even if it’s something good.”

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Life and Death

Since the Supreme Court reinstated capital punishment in 1976, 512 prisoners have been executed in the U.S., and 39 individuals originally sentenced to death have had their sentences commuted to life in prison.

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Year Commuted Executed 1976 0 0 1977 1 1 1978 0 0 1979 2 2 1980 2 0 1981 1 1 1982 0 2 1983 1 5 1984 0 21 1985 0 18 1986 5 18 1987 1 25 1988 2 11 1989 1 16 1990 1 23 1991 10 14 1992 2 31 1993 1 38 1994 1 31 1995 0 56 1996 3 45 1997 1 74 1998 1 68 1999* 3 12 39 512

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* To date

Source: Death Penalty Information Center, Washington, D.C.