My view: Daniel T. Kobil
Solid rationale for clemency in Williams case

June 27, 2004 (from the Indianapolis Star)

Gov. Joe Kernan will soon face one of the most important decisions of his public career when he decides whether to commute Darnell Williams' death sentence.

The clemency case for Williams is an extraordinarily strong one. The very people who put him on Death Row -- the prosecutor, many of the jurors and a judge who denied Williams' appeal -- now argue that his execution would be unjust. New exculpatory evidence from key witnesses, DNA testing that casts doubt on Williams' role in the crime, and the fact that more culpable participants in the crime avoided death sentences make this precisely the sort of the case that clemency was designed to address.

Despite the force of these arguments, it is by no means certain that Williams will be removed from Death Row. Clemency decisions in capital cases are among the most difficult calls that governors are required to make. These decisions seem to pit a governor's desire to do the right thing against the desire to act in a manner that is politically expedient. The conventional view long has been that governors have little to fear politically for refusing to commute a death sentence, but they face a substantial downside if they choose to grant clemency, even when it is deserved.

However, such a calculating approach to decision making may be changing. Perhaps because of the frequency with which errors in the justice system have come to light recently, governors have begun to demonstrate a commendable willingness to grant clemency in deserving cases.

Gov. Mike Easley of North Carolina, a former prosecutor and strong proponent of the death penalty, recently granted clemency in two cases like Williams' where serious doubts were raised about the proportionality of one defendant's punishment and the guilt of another defendant. Ohio Republican Bob Taft, despite having denied clemency in nine previous cases, last year commuted a death sentence based on newly discovered DNA evidence and doubts about the testimony of jailhouse informants. Oklahoma Gov. Frank Keating in 2001 became the first governor in that state since 1966 to commute a death sentence.

Moreover, governors who grant capital clemency are often rewarded by voters, not punished. One study found that of the 19 chief executives commuting death sentences in the past 10 years (excluding Gov. George Ryan of Illinois, who granted blanket commutations to 171 prisoners on Death Row in 2003), 15 of them had approval ratings of 55 percent or higher after granting clemency. The same study found that the majority of these governors who sought re-election were successful.

On the other hand, former California Gov. Gray Davis was notorious for his outspoken hostility to appeals for clemency in capital cases. He almost never followed favorable clemency recommendations in murder cases and was the subject of a federal lawsuit alleging that he had adopted a blanket policy of denying all capital clemency requests. In 2003, he was recalled from office by voters.

Of course, we must be cautious in drawing conclusions from such a small universe of cases: Aside from the blanket clemency grants issued last year in Illinois, there have been only 55 commutations of death sentences nationwide since 1976.

However, it seems fair to say that people generally approve of their leaders using the clemency authority in a conscientious, responsible manner, even if this sometimes entails taking a convicted murderer off Death Row. Indeed, the staunchest death penalty supporters would hardly defend the actions of a governor who reflexively denied clemency in deserving cases, for this would amount to an evasion of constitutional responsibility that deprives our justice system of an essential check.

Admittedly, we are asking a great deal of our public officials when we urge them to employ the clemency power in such a searching, judicious manner. Yet this is precisely why we have chosen to place the power in the hands of a single person who, to quote Alexander Hamilton, is possessed of "prudence and good sense" suited to the "delicate" weighing of many factors.

When Kernan is called on to make his clemency decision in Williams' case, he should be encouraged to scrutinize all of the facts carefully and exercise strong, principled judgment, despite the difficulty of such an approach.

Kobil teaches at Capital University Law School in Columbus, Ohio, and has written extensively on clemency.