New York Times - May 9, 1999

GRANTING CLEMENCY
Being in the Wrong Place at the Right Time

By EVELYN NIEVES

SAN FRANCISCO -- It is a bad time to be on death row.

Politicians win points -- and votes -- by wearing the tough-on-crime banner. In this environment, granting clemency has become an act of courage that requires an outlay of political capital few governors are willing to spend.

Not that clemency has ever been a good bet: 544 inmates have been executed and 39 granted clemency in the 23 years since the U.S. Supreme Court reinstated the death penalty. But given the current political climate, clemency is nearly impossible. It is no accident, political experts say, that 14 of the 39 prisoners spared death (including one in Alabama this year) were awarded clemency by three governors leaving office.

Conversely, the inmate who faces a clemency decision from a governor in the heat of political battle, or from one who is new and trying to prove himself, is as good as dead.

"For a governor new in office, especially a Democrat trying to establish law-and-order credentials, clemency is not an option," said Franklin Zimring, a professor of law at the University of California at Berkeley. "The political pressure to deny clemency is overwhelming."

Take the case of Manuel Babbitt, a Vietnam veteran with a Purple Heart and a history of mental illness. Thousands of veterans asked California Gov. Gray Davis to spare him, but he was executed last week for the 1980 murder of an elderly woman.

Davis, California's first Democratic governor in 16 years, promised to give his fellow Vietnam veterans due respect when he took office in January, but he also had campaigned as a supporter of the death penalty. Babbitt was only his second clemency case.

In his 14-page explanation denying clemency, Davis discounted or ignored the strongest reasons for mercy, including affidavits from two jurors who said they would have voted against the death penalty if evidence omitted from the trial had been included. While Davis had already rejected the first clemency plea to cross his desk, that of a Thai Buddhist priest convicted of two murders, a single execution was not enough for a new governor trying to establish his law-and-order reputation.

"He has to have several executions under his belt to establish his credentials," Zimring said. "He could write a lengthy paper describing why he made his decision, but in the end, the truth is he was not going to grant clemency."

Recent events in Missouri underscore how even a well-timed clemency can backfire. In January, in a much-publicized case, Gov. Mel Carnahan commuted the sentence of an admitted triple murderer after Pope John Paul II, who was visiting St. Louis, asked him to do so. The governor, a moderate Democrat who is hoping to unseat Republican incumbent Sen. John Ashcroft in 2000, had allowed more than two dozen executions to go forward, and announced that his act of mercy was a "one-time event."

Still, the governor's opponents promptly began making political hay. Senator Ashcroft held a victims' rights hearing in St. Louis, inviting as star witnesses the members of the family killed by the man Carnahan spared. Polls showed that the governor's clemency would cost him four times as many votes for the Senate as he would gain. All four of the clemency appeals to pass his desk since then have been denied.

Governors in the 38 states with a death penalty are not likely to grant clemency except in cases of "actual innocence," said Daniel Kobil, a law professor at Capital University in Columbus, Ohio. Clemency enables governors to commute a death sentence for many reasons, legal experts say, including the rehabilitation of a prisoner or extenuating circumstances that were not brought out in trial.

Instead, governors often deny clemency by saying they will not second-guess the wisdom of courts and juries, Kobil said. "I think it's a perversion of the governor's clemency power to say this," he said. "It makes clemency just another appeal, when the executive is supposed to consider whether this punishment is fair given all the circumstances."

Only when the public begins to punish politicians for not exercising their clemency power will the pattern change, Kobil said. In 1960, for example, when polls showed that only 50 percent of the public favored executions, one in four cases was commuted. But by the mid-1960s, support for the death penalty was growing.

California Gov. Edmund G. Brown Sr. was unseated by Ronald Reagan largely for commuting 23 death sentences from 1958 to 1966, although he had allowed 36 executions at the same time. Brown's son, Jerry, suffered his worst political defeat as governor in the early 1980s after appointing three anti-death-penalty justices to the Supreme Court. They were later ousted in an unprecedented ballot initiative. His sister, Kathleen, lost her 1994 challenge to then-incumbent Gov. Pete Wilson over her opposition to the death penalty.

Davis is likely to face more clemency pleas than any other governor before him, or any other governor in the country. California has more than 500 inmates on death row. At some point, he will probably grant clemency, said Zimring. But not soon.

"If the pope had been in California in January," he said, "his plea for mercy would have been denied."