The Decline of Executive Clemency in Capital Cases


Of all the times in the year at which one might consider the issue of executive clemency, it is uniquely appropriate to have done so in the season of Passover when this paper was first delivered. The first phase of one of the most distinctive events in the history of Christianity arose at Passover from the refusal of a certain governor, with the power of executive clemency, to exercise that power in a capital case. There are four versions of the story; here is how it is told by the Apostle Mark:

Now at the feast he used to release for them one prisoner for whom they asked. And among the rebels in prison, who had committed murder in the insurrection, there was a man called Barabbas. And the crowd came up and began to ask Pilate to do as he was wont to do for them. And he answered them, “Do you want me to release for you the King of the Jews?” For he perceived that it wasout of envy that the chief priests had delivered him up. But the chief priests stirred up the crowd to have him release for them Barabbas instead. And Pilate again said to them, “Then what shall I do withthe man whom you call the King of the Jews?” And they cried outagain, “Crucify him.” And Pilate said to them, “Why, what evil has he done?” But they shouted all the more, “Crucify him.” So Pilate, wishing to satisfy the crowd, released for them Barabbas; and having scourged Jesus, he delivered him to be crucified.

Over the past two thousand years, the release of Barabbas has given much pause for reflection. It has also been the occasion for one impressive novel and one awful joke. The novel is Barabbas – disturbing and fascinating – by the Swedish Nobel Prize winner, Par Lagerkvist, a book much read in the 1950s but largely ignored today. The joke is more recent, and is credited to New York’s former State Senator James Donovan. During a speech in which he defended the death penalty, Senator Donovan is reported to have asked, with rhetorical disdain and finality, where Christianity would be today if “Jesus had got eight to fifteen years with time off for good behavior.”

The subject of executive clemency in capital cases is triangulated on oneside by its history, on another by the current state of the law, and on the thirdby its rationale. The long history of executive clemency in capital cases beginseven prior to the confrontation between Jesus and Pilate. It commences in another biblical episode, the judgment of Jehovah on the murderer Cain. For the murder of his brother Abel, Cain was banished, and all others were prohibited from assaulting him in revenge. In spite of the biblical contributions, the history of the subject has rarely been examined.

The law, however, reasonably complete, up-to-date information on executive clemency does exist due to a survey recently published as a government document. This document obviates any need to review the matter here.

What does need to be done is to focus attention mainly on two aspects ofexecutive clemency: the declining usage of it in capital cases nationally, andthe problem of adequately explaining this decline. It will prove useful to look at these two topics against the rationale of executive clemency in general and as exercised in particular capital cases.

Suggested Reading

Andrew Michaels∞ I. Introduction II. The Court’s Death Penalty And Categorical-Exemption Jurisprudence A. Atkins and Roper: The Court’s Articulation of the Two-Part Test for Categorical Exemption  B. Graham: Finding a National Consensus Against a Punishment Based Solely on the Rarity of its Implementation  III. Why

Capital punishment has been applied in North America virtually since the first European settlers arrived. It has been estimated that about 16,000 people have been legally executed in the United States and its colonial predecessors; an unknown additional number of