Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency


During the twelve years of their marriage, Brenda Aris’ husband blackened her eyes many times, cracked her ribs, and broke her jaw. Rick Aris threatened to kill Brenda and her parents if she ever called the police. Brenda left repeatedly, only to be stalked, dragged home, and beaten again. During the last year of his life, Rick beat Brenda on a daily basis. During the six weeks before his death, Rick kept Brenda padlocked in their bedroom. On the day of his death, he beat her throughout the day. Just before passing out from using drugs and alcohol, Rick threatened that “he didn’t think he was going to let [Brenda] live till morning.” Brenda believed him. When she was certain he was asleep, she shot him. In her conversations with police following the shooting, Brenda said, “If he’s dead, at least he won’t kill me. It was self-defense.”

Brenda Aris was charged with second degree murder. The California trial court ruled that Brenda was not entitled to present a claim of self-defense to the jury. Brenda was convicted and sentenced to fifteen years to life imprisonment. The appellate court upheld the trial court’s ruling on Brenda’s self-defense claim, holding that, as a matter of law, self-defense “requires an honest belief that the killer is in imminent danger of death or great bodily injury,” and that, given this definition, no reasonable juror would find it possible to be in imminent fear of a sleeping man.

After having served nearly five years of her sentence, Brenda petitioned California Governor Pete Wilson for clemency. In her petition, Brenda claimed that she had not received a fair trial because a defense expert had not been allowed to testify that Brenda suffered from “battered woman’s syndrome. Rejecting Brenda’s legal argument, Governor Wilson stated:

[B]ecause clemency is not a continuation of the criminal justice process, I will not reconsider petitioner’s renewed legal claimshere. Mercy is not about a legal analysis of [battered woman’s syndrome]. I am not in a position to retry criminal cases or to speculate as to what might have been if different evidence were before the jury. Nor would it be appropriate for me to do so.

Governor Wilson was, however, sufficiently moved by Brenda’s circumstances to commute her sentence of fifteen years to life imprisonment to twelve years to life.” He said, “I have considered and sympathized with the pain and terror petitioner must have suffered during the many episodes of violence she most certainly endured.”

While acknowledging that “the California Constitution gives the Governor broad discretion to grant clemency on any condition he deems proper,” Wilson has flatly refused to revisit legal claims in any case, re-serving his grants of clemency for “rare and extraordinary cases” or innocence.

Governor Wilson’s narrow interpretation of the executive clemency power is wrong. His position reflects two erroneous assumptions: first, that redressing a legal error in an individual case is strictly the province of the judiciary; and second, that courts are always willing and able to correct an injustice. This article argues that the United States Constitution and theCalifornia Constitution authorize the executive to intervene in a criminal case if intervention is necessary to achieve a just result–regardless of the source of that injustice. Further, this article argues that clemency review, guided by principles of justice as well as mercy, must be exercised more frequently when access to post-conviction relief is restricted by courts and legislatures.

Indeed, a careful analysis of the history, intended purpose, and natureof the pardoning power reveals that, even in cases where judicial doorsremain open, the pardoning power may be exercised as the executivedeems fit, regardless of existing legal standards. Governor Wilson’s refusalto review claims of legal error leaves many who assert compelling claimswith neither judicial nor executive relief. While this denial of justice mayprove very costly for any defendant, it has special relevance for batteredwomen, who are often denied fair treatment in the judicial process.

It is not disputed that the executive pardoning power provides Governor Wilson with broad discretion. It is the thesis of this article that restricting application of executive clemency to cases of innocence or to cases with mitigating factors that the executive finds personally compelling–or politically safe–amounts to an abuse of discretion. By categorically refusing to exercise clemency review for cases involving legal error, the executive is improperly redefining the pardoning power and rejecting his constitutional mandate.

The 1993 United States Supreme Court decision in Herrera v. Collins has thrown these issues into sharp relief, confirming that the pardoning power has not outlived its usefulness. In Herrera, Justice Rehnquist, writing for the majority, denied habeas relief to death row inmate Leonel Herrera in part because he was not “left without a forum;” he still could “file a request for executive clemency.” The Court emphasized that habeas corpus is not designed to guarantee error-free trials, and the real ‘fail- safe’ of the criminal justice system” is the executive pardon.

This article articulates a theory of comprehensive and flexible clemency review supported by the HerreraCourt’s confirmation of this essential constitutional power: The executive has wide discretion to perform acts of mercy, and also has a constitutional obligation to use clemency as an instrument of justice. Part I presents the historical, judicial, and legislative development of the federal pardoning power and of California’s pardoning power. Part II reviews the current state of habeas corpus law and, giventhe severe restrictions on habeas review, calls for an increase in the exer-cise of clemency review. Part I argues that the pardoning power, properly interpreted, (1) authorizes the executive to grant pardons for reasons of mercy that are justice-based; (2) authorizes the executive to consider claims of legal error that cannot be reached by the judiciary; and, (3) enables the executive to revisit an established legal standard if the standard’s application is inconsistent with principles of justice.

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