COMMUTATION OF THE DEATH SENTENCE: FLORIDA STEPS BACK FROM JUSTICE AND MERCY

Florida State University Law Review SUMMER, 1992 20 Fla. St. U.L. Rev. 253

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JOSEPH B. SCHIMMEL

SUMMARY:
  ... Adding a chapter to Florida's long history of death sentence commutations, the Florida Clemency Board recently overhauled its Rules of Executive Clemency. ... The injustice of this commutation, in the eyes of the public and of the other prisoners, makes grace an unacceptable justification for exercising the clemency power. ... Although reports, records, and documents generated or obtained during the investigation are confidential and available only to the Clemency Board and staff, transcripts of any statements or testimony of the condemned that are a part of the Commission's report are available to the state's attorney, the inmate's attorney, and the victim's family. ... These savings, which would not be realized if the condemned is resentenced to death on appeal, are small, however, in comparison to the chance that obvious injustice will be remedied early through commutation of a death sentence (or a full pardon). ... First, forcing an early clemency hearing would not usually force the condemned to pursue a collateral appeal. ...  

TEXT:
 [*253]  I. INTRODUCTION

Adding a chapter to Florida's long history of death sentence commutations, the Florida Clemency Board n1 recently overhauled its Rules of Executive Clemency. n2 Although the Clemency Board's power to commute death sentences to lesser sentences has been used sparingly in the recent past, it will likely be used more often in the future as Florida's death row population expands and more restrictions are placed upon the use of federal collateral appeals. n3

Increased use of the commutation power should be prefaced by a good look at the power itself. This Comment reviews various state clemency provisions and the federal judiciary's interpretations of federal clemency. It also examines the new Rules of Executive Clemency and their place in the history of Florida's commutation power. Finally, the Comment suggests changes that would improve the commutation process.

A. Clemency: The Basic Framework

Commutation, along with reprieve, pardon, and amnesty, is a form of clemency. Clemency has been defined as "an act of grace proceeding from the power entrusted with the execution of the laws [which] exempts the individual upon whom it is bestowed from all or any part of the punishment the law inflicts for a crime committed." n4

Unlike a reprieve, which merely postpones the execution of a death sentence, commutation of a sentence prevents the execution from taking  [*254]  place at all. n5 The commutation power is often treated as a subset of the pardon power. The rationale is that the greater power of pardoning -- exemption from all punishment -- includes the lesser power of commutation -- reducing the severity of punishment. The United States Constitution, n6 and many state constitutions n7 that grant the power of commutation, mention only the powers of reprieve and pardon.

B. The Authority To Grant Clemency

The clemency power may be vested in any branch of government. Usually, it is given exclusively to the chief executive, although the power to pardon treason or impeachment is often placed in the legislative branch. n8 Some states, including Florida, force the chief executive to share power with other executive branch members n9 or an independent board, n10 or both. n11 Still others place almost complete control in an independent agency. n12 A few even divide control over clemency between the executive branch and the legislative n13 or judicial branch. n14

 [*255]  Controversy arose through the years, however, about who should hold the clemency power. Alexander Hamilton argued in favor of reposing the pardon power in a single person:

As the sense of responsibility is always strongest in proportion as it is undivided, . . . a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. n15

While many states, including Florida, have chosen to divide the power by having the governor share it with a clemency board, this division is unnecessary. The governor's responsibility for the proper execution of the laws should be sufficient to prevent him or her from abusing the pardoning power. The pardoner generally exercises the power for the public. According to the Florida Constitution, all power is inherent in the people. n16 The people are the sovereign from which the efficacy of the power flows. n17 Although the sovereign pardons through the governor, "it is none the less the act of the sovereign, and not the personal act of the Governor." n18 In his or her capacity as actor for the people, the governor's duty is to consider and decide on each request for clemency. n19 As evidence that this duty resides in whomever is charged with administering the laws of the sovereign, n20 it falls to the  [*256]  lieutenant governor in states with constitutional provisions requiring the lieutenant governor to step into the shoes of governor whenever the governor is absent from the state. n21

C. Exercising the Commutation Power

Because the commutation of a sentence is considered the determination that the public welfare will be better served by not requiring a condemned to serve his or her sentence or to be executed, n22 the condemned's consent is generally not required for commutation of the sentence. n23 The commutation is limited only by the requirement that the substituted punishment be authorized by law. n24 However, a commutation may be conditioned upon the condemned's behavior. n25 In such a case, commutation requires the consent of the prisoner. n26

II. COMMUTATION OF THE DEATH SENTENCE

A. Justification for Commutation

In his justification for a presidential pardoning power, n27 Alexander Hamilton expressed the basic rationale underlying the exercise of the commutation power: "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." n28

 [*257]  Since the earliest days of the United States, commutations have played an important role in refining a static and rigid law. n29 Self-defense and youth were recognized as mitigating factors in applying the pardoning power before they became recognized by the law. n30

Recent justifications for the commutation power include state legislatures' recognition of the battered spouse syndrome. n31 In 1991, several governors commuted the death sentences of women who had been severely abused by their victims. n32 Requests for clemency by victims of crime have also been heard to justify commutations. n33

The exercise of clemency injects a balance into our criminal justice system that would not otherwise exist. Although the need for individualized sentencing is well-established, n34 an abundance of litigation indicates that a perfect system is unattainable. As the power of the pardon is indispensable for those cases when guilt is uncertain, the concordant power of commutation is essential for those occasions when even "the most correct administration of the law by human tribunals" n35 inflicts a punishment beyond the deserts of the defendant.

Because clemency is meant to ensure that justice prevails in every case, even in those that may have slipped through the cracks in our criminal justice system, it should be viewed as a tool to remedy injustice in particular cases rather than a justification for preventing punishments with which a governor disagrees or for bestowing acts of grace.

While the power to pardon . . . or commute after conviction for offenses against the state is a matter of executive discretion, this  [*258]  discretion should be exercised on public considerations alone. An undue exercise of the pardoning power is greatly to be deplored. It is inexcusable. . . . As an officer [the governor] should look upon the law as wise and just, whatever may be his private opinion. n36

Although virtually every guilty person could be released under the guise of the clemency power, overuse of the power is rare because of its inherent danger. n37 Wholesale commutation of sentences is not widely practiced, but several governors have taken it upon themselves to commute every death sentence because of their personal opposition to the death penalty. n38 In admonishing an Oklahoma governor for such a policy, that state's highest criminal court attempted to convince the governor of the need for self-restraint:

There is no provision of law in Oklahoma which requires the Governor to approve a verdict assessing the death penalty before it can be executed. His duty with reference to such verdicts is negative and not affirmative. He has nothing whatever to do with them, unless he may be satisfied that an injustice has been done in an individual case; then he may commute the sentence or pardon the offender; but this can only be done upon the ground that, upon the facts presented, the defendant was a fit subject for executive clemency, and that an exception should be made in his favor as against the general rule of law. n39 It is not true that when a defendant is executed according to law the Governor is in any wise responsible therefor. n40

The danger of bestowing clemency as an act of grace rather than as one of pro bono publico is demonstrated by a story involving a southern governor visiting a prison. It is said that in commuting a sentence, he "walk[ed] down a prison corridor[,] . . . stopped, apparently at random, and pointed to a cell, and that man went free." n41 The injustice of this commutation, in the eyes of the public and of the other prisoners, makes grace an unacceptable justification for exercising the clemency power. Disturbingly, advocates of clemency as an act of grace are often in positions of influence over the clemency decision. n42

 [*259]  B. Abuse of the Clemency Power

When the executive abuses its power of clemency, recourse is limited. The courts have no authority to inquire into the reasons or motives behind the exercise of the power and cannot decline to recognize pardons for an executive's abuse of discretion. n43 Cases discussing the subject suggest only that the electorate resort to relief at the polls n44 or through impeachment. n45

C. Federal Constitutional Restrictions

As discussed above, few legal constraints attach to the exercise of the clemency power. Moral opposition and random acts of grace may offend the public, but they do not offend state constitutions. Still, the supreme law of the land -- the United States Constitution -- must be considered in considering the constitutionality of exercising the commutation power.

1. Cruel and Unusual Punishment

The United States Supreme Court has fully considered and rejected the claim that the Eighth Amendment prohibition of cruel and unusual punishment n46 is implicated by the possibility of death sentence commutation through executive clemency. n47 In Gregg v. Georgia, the defendant claimed that the arbitrariness which invalidated Georgia's previous capital punishment system n48 was still present in the state's new system, which allowed commutations. Although recognizing that Georgia's executive could arbitrarily make a decision preventing the imposition of the death penalty, the Court held that this possibility did not violate the Eighth Amendment. n49 Likewise, because the possibility of commutation is only a hope for an ad hoc exercise of clemency, the Court has held that this possibility would not save an otherwise unconstitutional sentence. n50 Thus, Eighth Amendment concerns in capital cases focus on judicial processes -- both trial and appellate -- rather than executive processes. n51

 [*260]  2. Due Process

The Due Process Clause of the Fourteenth Amendment provides that a citizen may not be deprived of a legal right or entitlement without due process of law. n52 Such protected interests may arise from either the Due Process Clause itself or the laws of the states. n53 Neither an interest in a clemency hearing nor a right to receive clemency arises from the Fourteenth Amendment. n54 The states' constitutions do not provide an accused with the right to have clemency granted. Unless state law prescribes the grounds for commutation, a governor cannot be required to explain his or her reasons for refusing to act on a commutation request. n55

Furthermore, the existence of regulations such as the Florida Rules of Executive Clemency, which are guidelines for the exercise of executive discretion, n56 do not give rise to a constitutionally protected interest. n57 A liberty interest will arise only when the regulations are mandatory and require specific substantive predicates. n58 The Florida rules do not limit the discretion of the executive: "[N]othing contained herein can or is intended to limit the authority given to the Clemency Board." n59

 [*261]  III. The Florida Scheme

A. Historical Perspective

The clemency power in Florida has changed radically through the years. When the territorial government of Florida was established in 1822, the Governor was given powers similar to those of the President: n62 the power to pardon any offense before or after conviction. The first Florida Constitution, however, limited that power to pardons after conviction only. n63

The next change, during Reconstruction, forced the Governor to share the clemency power. n64 The Attorney General and justices of the Florida Supreme Court joined with the Governor to form a Clemency Board. n65 A majority vote of the Board was required to grant clemency. n66 The Governor was required to submit a report to the Legislature during each regular session showing all pardons given. n67 The Legislature was given the right to regulate the manner of applying for pardons. n68 In 1896, the composition of the Clemency Board was again changed to include only the Governor and Cabinet. n69

The current Florida Constitution, as revised in 1968, removed the legislative power of regulating the manner of applying for pardons and eliminated the reporting requirement. n70 It was also changed to permit amnesties. n71

 [*262]  B. Powers, Limitations, and Assistance of Counsel

The power to grant clemency in Florida rests exclusively with the executive branch, n72 specifically, in a Clemency Board composed of the Governor and members of the Cabinet. n73 The Board can grant clemency at any time, before or after conviction, by an affirmative vote of the Governor and three other members. n74

In Florida, the other branches of government may not interfere with this clemency power. n75 Therefore, actions of the Clemency Board and actions taken on its behalf by the Office of Executive Clemency and the Florida Parole Commission are not subject to section 286.011, Florida Statutes, the Government-in-the-Sunshine Law; n76 chapter 120, Florida Statutes, the Administrative Procedure Act; n77 or chapter 119, Florida Statutes, the Public Records Law. n78 In addition, the courts cannot second-guess the application of the clemency power. n79

The Clemency Board may grant clemency without the consent of the condemned or may impose any condition, limitation, or restriction that is not illegal, immoral, or impossible on the granting of clemency. When a convict accepts a grant of conditional clemency, the acceptance is subject to the terms imposed. n80

The Legislature has authorized appointment of counsel to assist indigent defendants in preparing applications for clemency. n81 A trial court that renders a judgment imposing the death penalty may appoint  [*263]  an attorney to represent an indigent defendant who has applied or wants to apply for commutation of that sentence. n82

As a part of its powers, the Clemency Board promulgates rules "to assist persons in applying for clemency and to provide guidance to the members of the Clemency Board." n83

C. Florida's Rules of Executive Clemency

The Florida Clemency Board promulgated the Rules of Executive Clemency to provide guidance to both the Board and Florida inmates seeking clemency. n84 The rules were originally promulgated in 1976, but have been recently revised. n85 Only particular rules apply to the commutation of death sentences. n86

Rule 15 replaced old Rule 7 and applies specifically to commutation of death sentences. n87 This new rule could substantially affect the operation of clemency in Florida. n88 Rule 15 allows only the Governor to begin the process of considering the commutation of a condemned's sentence, n89 whereas Rule 7 of the 1976 version provided that the Governor or any member of the Cabinet could request an investigation into factors relevant to commutation. Under Rule 15, after a request from the Governor, the Commission conducts interviews with the inmate (who may have legal counsel present), and, if possible, the victim's  [*264]  family and the trial attorneys who prosecuted and defended the case. n90 The Commission has ninety days to complete its investigation, and 120 days from the Governor's request to provide a written report of its findings to all members of the Board. n91

Although reports, records, and documents generated or obtained during the investigation are confidential and available only to the Clemency Board and staff, n92 transcripts of any statements or testimony of the condemned that are a part of the Commission's report are available to the state's attorney, the inmate's attorney, and the victim's family. n93 Attorneys for both sides and any interested person may also file a written statement on the case with the Clemency Board. n94

Once the report is completed, the Clemency Board places the case on the agenda for its next scheduled meeting. n95 The Board holds regularly scheduled meetings each March, June, September, and December, n96 and any member of the Board may request a special meeting to consider a particular case. n97 In addition, the Governor has the discretion to place a case on the agenda at any time and set a hearing for the next scheduled meeting or a specially called meeting. n98

At the clemency hearing, attorneys for the State and inmate may present oral arguments not to exceed fifteen minutes, and a representative of the victim's family may make an oral statement not exceeding five minutes. n99

The Florida rules do not limit the discretion of the executive: "[N]othing contained herein can or is intended to limit the authority given to the Governor or the Cabinet." n100 "The Governor has the unfettered discretion to deny for any reason any request for clemency." n101 The rules do not require the Governor to make any factual findings in order to deny clemency to a capital defendant. n102

 [*265]  D. Execution of the Death Sentence

Death at the hands of the State comes slowly in Florida. The path from sentence to execution seldom takes less than eight to ten years. n103 After the Florida Supreme Court reviews a death sentence, n104 the condemned initiates a seemingly endless series of habeas corpus appeals. At any point in the process, the Clemency Board can commute the sentence of death. n105 At some time determined by the Governor, the Florida Parole Commission conducts an investigation into all factors relevant to the issue of clemency. n106 After the investigation, a clemency hearing is held before the Clemency Board. n107 Should the Board refuse to commute the sentence of death, the Governor issues a death warrant. n108 While the Governor must stay the execution of any person who is pregnant n109 or insane, n110 absent these circumstances he or she must issue the warrant. n111 If the Governor unjustifiably fails to issue a warrant, the Department of Legal Affairs may apply to the Florida Supreme Court for a warrant directing the sentence to be executed. n112 Once the warrant has been issued and absent any successful last-minute appeals, the inmate is executed by electrocution. n113

 [*266]  IV. Justice and Mercy in the Future: The Role of the Executive

The objective of commutation is to promote the public welfare. As previously explained, n114 the Florida Constitution grants the Executive power to commute a prisoner's death sentence based on mitigating circumstances, without judicial review. The power of commutation is intended to promote the cause of justice by ensuring that no one falls through the cracks in the State's sentencing procedure.

Because the power to grant commutations is intended to be used to advance justice, the Executive has an obligation to commute sentences only when justice so requires. The public recognizes that the Executive has no right to commute sentences at will and without regard to justice and may respond to sentences commuted in contravention of this rule by taking action in the next election. Unfortunately, the procedures and philosophy underlying the consideration of commutation in Florida hardly seem structured to reach what the public will view as a just result.

Bobby Brochin, special counsel to Florida Governor Lawton Chiles, spoke about the role of the executive branch in Florida's capital punishment system at a recent symposium sponsored by the Florida State University Law Review. n115 Brochin included in his presentation several assertions about Governor Chiles' personal decisions regarding the proper operation of the death penalty. These assertions have been considered accurate for purposes of this Comment. n116 Although Florida's clemency system limits the Governor's ability to commute death sentences without the concurrence of three Cabinet members, the remainder of this Comment, like Brochin's presentation, will focus on the considerations the Governor must weigh in considering whether to grant or deny commutations.

A. Substantive Considerations

1. Current Considerations

In considering a request for commutation, each member of the Clemency Board makes decisions based upon his or her personal understanding  [*267]  of the purpose of clemency. Therefore, it is important that each member individually define clemency. Brochin set forth two contradictory notions of the purpose of clemency.

Initially, Brochin stated that the primary consideration in commuting a death sentence was whether the public interest would be better served by sparing a life than by taking it. n117 This consideration is generally noncontroversial.

Brochin later said, however, that clemency is an act of grace, not a matter of right, and not another form of appellate review. n118 While the issue of clemency as a form of appellate review has not been decided by the courts, n119 history has long since rejected the concept of clemency as an act of grace. Implicit in the creation of the clemency power is the requirement that it be used in the public interest. n120 Therefore, while the Executive has discretion to grant commutations, he or she has the obligation to grant them when the public interest requires it. Clemency thus serves as another check on the capital punishment system -- one entrusted to the Executive.

Brochin stated that everything should be considered by the Governor when determining whether clemency should be granted, n121 including residual doubts about guilt; new information; whether the condemned planned the murder; relative guilt and punishment; mitigating circumstances, such as duress, coercion, jury override, post-traumatic stress disorder, or mental retardation; judicial history of the case; trial judge recommendations; publicity surrounding the case; and the Governor's personal views on the death penalty. n122 Brochin observed that, contrary to the limitations placed on the trial judge responsible for sentencing, there is no limit to the type and scope of information the Governor may use in making his or her decision. n123

 [*268]  2. Recommendations

Brochin omitted several important considerations that should be included in the weighing process. The Board should routinely commute sentences of the elderly who may consume large amounts of money navigating the current appeals system, and then die before the State executes the sentence. The death sentence should also be commuted when racial or other improper motives may have affected the sentencing decision. Such unacceptable motives have no place in the administration of justice, and the remedy of commutation is appropriately severe. Also, Florida should be leading the nation in bringing attention to new defenses such as the battered spouse syndrome and post-traumatic stress disorder, by commuting sentences in such cases. n124

The Board should consider basing clemency on concepts of "poetic justice" n125 and "cosmic justice." n126 "Poetic justice" refers to an offender becoming the victim of his own crime, for example, by accidentally killing a loved one during the commission of an armed robbery. In such a situation, the death penalty plus the suffering already endured by the offender exceeds what is retributively deserved for the offense. n127 "Cosmic justice" occurs when the offender succumbs to the temptation to commit a crime because of unusually extreme circumstances dominating his or her life. n128 In both of these examples, justice requires that the Board refuse to allow the offender to incur the additional suffering of death. n129

The Clemency Board should also consider the impact of an execution on the condemned's family in making its decision, n130 which is just as relevant as the impact of the crime on the victim's family. It should also consider commuting a sentence imposed before the issuance of new case law that would have prevented imposition of the death penalty. n131

 [*269]  Finally, the Board should grant conditional commutations when life imprisonment would serve the same function as the death sentence. For example, commutation should be granted when it is clear that the jury's recommendation of death was based upon its belief that the condemned must be sentenced to death because he or she is likely to kill again. When the Board recognizes this as the primary consideration in imposing the sentence of death, it should commute the sentence conditional on the inmate leading a peaceful and cooperative life behind bars. n132

Brochin implied that such reforms are unnecessary because the Governor is unable to affect the rate of executions in Florida through any affirmative act. n133 In support of this claim, Brochin observed that although Governor Chiles has signed far fewer death warrants than his two immediate predecessors, the average number of executions has remained at two per year. n134 This implication is probably fallacious. The consistent level of executions is more likely attributed to the actions of the United States Supreme Court in nullifying all death sentences in 1972 n135 and the delayed execution of sentences resulting from the current collateral appeals process, rather than the actions of the Governor. Clearly, the rate of executions will accelerate without intervention. The Governor's job is to act to keep them in check.

In further support of his theory that the Governor cannot affect the rate of execution in Florida, Brochin n136 explained that the Governor's consent is not statutorily required for executions to take place -- the Department of Legal Affairs may request that the Supreme Court issue death warrants. n137 Contrary to Brochin's implication, however, this does not relieve the Governor of the ultimate responsibility for executing a condemned. n138 According to the Florida Constitution, the Governor may grant reprieves at any time, even in the face of signed death warrants. n139 Although each reprieve may last no longer than sixty days, n140 the Governor may grant successive reprieves which cover more than sixty days. n141 Utilizing this power, the Governor may keep a condemned alive for the entire length of his or her term in office.

 [*270]  Therefore, Governor Chiles should not ease his conscience by pretending that the ultimate decision to execute a condemned does not rest with him. Instead, he should use his public policy platform to set the tone and direction for capital punishment, to explain to the people why certain persons should not be put to death, and to educate the public about the death penalty. If Governor Chiles cannot convince three Cabinet members that a condemned should not be put to death, the execution will eventually occur, despite his best efforts. As Brochin observed, the very essence of clemency is political. Therefore, the Governor cannot hope that commutations and reprieves will go unnoticed (or unpunished). If the Governor is convinced that his decision regarding a commutation is proper, he must make every effort to convince the public.

B. Procedural Considerations

The Governor should ensure that the clemency system is structured to complement the judicial system and to result in justifiable and reliable decisions about commutations. These goals can be accomplished by (1) shortening the time a condemned spends in the capital punishment system; (2) providing procedures that ensure that the Clemency Board has access to accurate and complete information about a case; and (3) convincing the public that the decision was correct. The new Rules of Executive Clemency should have been drafted with these goals in mind. To the extent they are not addressed by the rules, the Governor weakens his or her ability to determine whether the public interest would be served by sparing the life of a condemned.

1. Shortening the Time a Condemned Spends in the Capital Punishment System

In any capital punishment system, the condemned stays alive by keeping his or her appeals alive. Therefore, the condemned usually waits as long as possible before pursuing collateral appeals and is only motivated to appeal by the running of the time limit for bringing an appeal or the signing of his death warrant. n142 Although a death warrant is often signed for the sole purpose of forcing a condemned to pursue an appeal, n143 Governor Chiles will not sign a warrant until clemency has been considered. n144 Because of this practice, many clemency  [*271]  hearings are held before the filing of collateral appeals. Governor Chiles dislikes this system because it means that clemency hearings consist primarily of procedural complaints that should be heard by the courts. An inmate's counsel will frequently raise arguments concerning the unfairness of the trial, the incompetence of previous counsel, and the failure of collateral appeals to remedy these problems. n145 The Governor has approached this problem by attempting to delay consideration of clemency until closer to execution, after judicial remedies have been exhausted. n146
 
a. Is the Governor's Goal Valid?

Although delaying clemency hearings until after judicial remedies have been exhausted may eliminate procedural issues from clemency hearings, there are many disadvantages associated with this approach.

First, significant savings may be achieved by commuting a sentence before the initiation of a collateral appeal. Millions of dollars are currently spent on collateral appeals and other procedures involved in the process of executing an inmate. n147 By contrast, the monetary costs associated with the consideration of clemency are small, consisting of the expenses of clemency hearings and the interviews associated with them. n148 Of course, the expenses associated with the consideration of clemency may never be incurred if an inmate is forced to file an appeal prior to a clemency hearing and his or her sentence is reversed upon appeal. These savings, which would not be realized if the condemned is resentenced to death on appeal, are small, however, in comparison to the chance that obvious injustice will be remedied early through commutation of a death sentence (or a full pardon).

 [*272]  Along with not saving the state any money, delaying the clemency process beyond collateral appeals does not provide any benefit to the condemned. Unlike many collateral appeals, clemency hearings may be held multiple times. n149 Newly discovered evidence insufficient to support the claim of actual innocence required for consideration of an abuse of discretion claim n150 could support the commutation of a death sentence.

What might be the Governor's true motives for delaying the clemency process? A believable, political reason for delay is to avoid the backlash that follows any death sentence commutation. A governor who commutes a death sentence is perceived as being "soft on crime" -- a weakness that may be more damaging to a political career than adultery, sexual harassment, or drug use. When Governor Chiles sees a case of obvious injustice, he can sit back and wait for the courts to reverse the unjust conviction or sentence rather than make a decision on commutation. Should another Board member be allowed to request an investigation of the case, the Governor faces an undesirable choice: either join the Board in voting to grant clemency and be held personally responsible in the next election, or vote against clemency and leave the inmate unjustly confined to death row. Adopting a philosophy of delaying commutation hearings until the last possible moment contradicts the Governor's goal of shortening the time a condemned spends in the capital punishment system, but does explain why the new rules extend the Parole Commission's time allowance for investigation and report from ninety to 120 days. n151
 
b. Is the Governor's Solution Tailored To Achieve the Goal?

Governor Chiles has apparently attempted to achieve his goal of delaying the consideration of clemency until closer to execution by promulgating the new Rules of Executive Clemency. According to Brochin, who participated in drafting the 1992 rules, n152 new Rule 15 n153 defers hearings until closer to execution, after judicial remedies have been exhausted, yet gives the Governor discretion to hold the hearings at an earlier date. A close comparison of old Rule 7 with new Rule 15 reveals, however, that Rule 15 does not actually defer hearings until  [*273]  closer to execution. Old Rule 7 gave the Governor or any member of the Cabinet the power to request that the Florida Parole and Probation Commission make an investigation into factors relevant to commutation of a death sentence shortly after it was handed down by the trial judge and reviewed by the Florida Supreme Court. n154 New Rule 15 gives this power exclusively to the Governor and deprives the other Clemency Board members of the ability to request clemency investigations. n155 Under the new rule, the Governor's goal of considering clemency closer to execution is achievable only if the Governor waits to request an investigation into commutation until after judicial remedies have been exhausted. The problem with this strategy is its propensity to create a waiting game between the Governor and the death row inmate, with the Governor waiting until the inmate's collateral appeals have been decided before requesting a clemency investigation, and the inmate waiting to file his appeals until the last possible moment. Assuming that delaying the consideration of clemency is desirable, it could have been achieved more effectively through alternative means.

Why was the commutation of death sentences rule changed to preclude Board members from requesting an investigation? Perhaps the Governor feared that it would lead to premature executions. If it existed, this fear was unfounded. Allowing Board members to force early clemency hearings would not lead to premature executions. Under either set of rules, the Governor retained the power to postpone a condemned's execution. Even if, as possible under the old rules, a Board member forced the Board to hear a case the Governor believed was not ripe for review -- a determination difficult to reach without a clemency investigation -- the Governor could delay execution by refusing to sign the warrant immediately. In fact, the Governor is not required to act on a clemency hearing and usually takes death penalty cases under advisement. Furthermore, without the Governor's acquiescence, no execution can take place. n156 Even a warrant issued by the Supreme Court is subject to the Governor's acquiescence because of his power to grant reprieves. n157

 [*274]  If the rule change was really intended to prevent Board members from forcing early clemency hearings, perhaps the Governor disapproved of the motivations behind early hearings. Board members may be motivated to force an early clemency hearing because it may (1) force the condemned to pursue collateral appeals; (2) quickly remedy a clearly unjust sentence; (3) prevent the loss of relevant testimony which results from delay; or (4) bring a case into the public eye for political reasons. None of these reasons vindicate the change in the rule. In all cases, the Governor either had the power under the old rule to thwart the Cabinet member's plans, or the Cabinet member is able to accomplish his goal without forcing an early clemency hearing.

First, forcing an early clemency hearing would not usually force the condemned to pursue a collateral appeal. Recall that the condemned is spurred to appeal by the signing of a death warrant -- not by the clemency hearing itself. n158 If the Governor disapproved of forcing the condemned to pursue collateral appeals, and he presumably does not, he could simply refuse to sign a death warrant. Holding a clemency hearing is merely a prerequisite for signing the warrant, not a catalyst.

Second, the Governor could always prevent the Board from granting a commutation by exercising what is in essence his veto power. The Governor has always possessed the power to delay the commutation of an unjust sentence. Because early clemency hearings could not remedy injustice without the Governor's assent, opposition to this motivation does not support the rule change.

Third, even today's public probably supports preventing the loss of relevant testimony, as the Governor no doubt does.

Finally, preventing early clemency hearings simply will not keep a case out of the public eye. Members of the Clemency Board do not need to call a clemency hearing to gain access to the media -- any member may contact the media at any time. Given the secrecy with which the rules n159 surround the commutation process, the process is ill-suited for embarrassing the Governor by exposing his actions to the public, should that be the goal of a Cabinet member.

In sum, none of the motivations for early clemency hearings could or will be thwarted by the rule change. Preventing Clemency Board members from ordering commutation investigations and hearings has no discernable rationale.
 
c. How Should the New Rules Have Been Structured?

What changes would have produced better results than the new rules? The obvious step, although one not probed in this Comment, is  [*275]  to press the Legislature to shorten the time allowed for state collateral appeals. A quicker step is to assure that the Clemency Board is no longer used as another level of review for procedural complaints. The Rules of Executive Clemency should explicitly state that no issue which could still be raised in a collateral appeal may be argued by the condemned, in writing or at the hearing, and that the Board will not give any consideration to such matters. n160 The rules should require that the condemned file a statement prior to the hearing explaining why each issue he or she intends to raise with the Clemency Board may not be raised on collateral appeal.

The Governor should have few qualms about refusing to consider issues the condemned has deliberately refused to submit to an appeals court or will be submitting in the future. Such a rule would speed up the process more than would shortening the time allowed for state collateral appeals, and would balance the interests of the Clemency Board in quickly remedying inmates' sentences while remaining free from procedural complaints. It would also allow the condemned to argue to the Clemency Board mitigating evidence that may require commutation despite a lawful sentence and conviction, without waiting for all collateral appeals to be heard.

The condemned should still have sufficient time to file for habeas relief after the 120 days required for completing the clemency investigation and report. n161 Otherwise, the condemned has thirty days after a warrant is signed in which to petition for collateral relief. n162 The Governor may always use the reprieve power (except in cases of treason or impeachment) n163 or a stay of execution n164 to allow the condemned to pursue available collateral relief, and any appeal automatically stays execution. n165

2. Making an Accurate Clemency Determination

Without procedures that ensure access to accurate and complete information about a case, commutations are poorly suited to promoting the public interest. The Clemency Board cannot hope to consider  [*276]  everything unless it is aware of everything. Distressingly, the new rules do not just fail to strengthen the Board's ability to make an accurate clemency determination, they actually weaken it. n166

Upon the Governor's request, the Florida Parole Commission investigates "all factors relevant to the issue of clemency." n167 The new rules require that the Commission interview not only the inmate, as required under the old rules, but also, when possible, the victim's family and the trial attorneys who prosecuted and defended the inmate. n168 While the new rules are an improvement, they fail to require an attempt at contact with one individual who holds valuable information -- the sentencing judge. The judge may be the best source for objective information about the case, especially when time has tempered his or her views. n169 Moreover, once the sentence is final, no reason remains not to speak with the judge. However, under the current rules, the only contact with the sentencing judge occurs after an order of commutation has been made, when the order is served on the judge. n170 The rules should, at a minimum, require that the sentencing judge be notified when a clemency investigation has begun. n171

In a step backward, the new rules do not allow the condemned's attorney access to any part of the Parole Commission's report, except for statements or testimony by the inmate that are also available to the victim's family and attorney. n172 By contrast, the old rules kept the investigative report confidential as far as the public was concerned, but provided each side's attorney with access to the confidential portions. n173 The effect of the new rules is to prevent the condemned form learning of and responding to false or misleading statements in the report.

Any interested person may file a written statement, brief or memorandum on the case up to ten days before the clemency hearing. n174  [*277]  But, again, the statements are kept confidential, n175 preventing the condemned from learning of and responding to false or misleading statements. To allow the condemned to respond to such statements, full access should be provided to the attorneys on each side, as was permitted under the old rules. n176

As discussed earlier, the new rules provide that attorneys for the State and condemned may present oral arguments at the clemency hearing not to exceed fifteen minutes n177 while a representative of the victim's family may make an oral statement not to exceed five minutes. n178 These rules take at least two steps backward from the old rules, rather than a step forward. Under the old rules, each attorney was allowed thirty minutes, n179 rather than fifteen. n180 Clemency hearings only occupy four mornings each year, and even under the old rules few attorneys exceeded fifteen minutes. Practically speaking, most attorneys realize that brevity is the surest route to poignancy. In light of the fact that applicants for all other forms of clemency are allowed a total of twenty minutes, n181 with the possibility of extension by a member of the Board, n182 one must ask just how committed the Governor and Clemency Board are to hearing the whole story.

Although the new rules allow the victim's family to make an oral statement -- indicating the Board is interested in making better-informed decisions -- they still do not allow the condemned to make an oral statement on his own behalf. While allowing a single representative from the victim's family to testify provides a benefit only marginally greater than that obtained by allowing written statements of unlimited length and number, allowing the condemned to testify would allow members of the Clemency Board to judge the condemned for themselves -- assessing regret in killing an unintended victim, reduced mental capacity, trauma, or other relevant factors. Further, the  [*278]  presence of the condemned would impress upon the Board members that a real person's life hangs in the balance of their decision. n183

The Clemency Board should not fear that a condemned's presence would disturb the orderliness of the proceedings. In reality, a condemned is probably unlikely to contemplate disturbing the clemency proceedings because of the danger that the Clemency Board would simply refuse to grant clemency, no matter how compelling the reasons for mercy. There is more justification for fearing that emotional victims (in non-death sentence cases) or family members will disturb the Board's proceedings and prevent it from making a sound decision.

Indeed, allowing victims access at all is a questionable practice. Brochin n184 wisely observes that the presence of victims takes the focus away from the offender and the offense, which may include the circumstances of the victim's death, and shifts it onto the value of the victim's life. No doubt the factors Brochin lists n185 -- whether the victim was an innocent bystander, pregnant, defenseless, a child, a police officer, or was killed in the presence of a family member -- are significant and should be considered by the Board because they may contribute to the heinousness of the homicide. But other factors, such as the victim's status in the community, friends, or value as a parent or spouse only serve to discriminate between victims. As Brochin said, n186 in commuting death sentences, we should be demonstrating our intolerance toward the unlawful taking of any human life, regardless of the status of that person. n187

Non-attorney speakers at clemency hearings (presently the representative of the victim's family, and, under my proposal the condemned) should be subject to cross-examination. Cross-examination is necessary to ensure the veracity of those speaking before a tribunal of any sort. In a clemency hearing, the attorneys for both sides could bring  [*279]  to issue the veracity of the reports and statements submitted to the Board.

3. Convincing the Public

As public opinion clearly disfavors commutation of a sentence, n188 the Governor must try to sway public opinion to regain the effectiveness of the commutation power. A good first step would be to require Clemency Board members to explain publicly why they opposed or favored clemency. The Governor should open up the process further, by eliminating the confidentiality protecting records and documents generated in the clemency process. n189 The rules refer to the sensitive nature of this information, n190 but the public should wonder about the nature of information that was not revealed at the original trial and must not be disclosed to anyone, including the condemned's attorney. If the Governor and Cabinet found a case suited for commutation, n191 revealing the justification for the commutation would be a requirement for public acceptance of the action.

V. CONCLUSION

Florida's new Rules of Executive Clemency were not drafted with the proper goals in mind. At best, they were changed in recognition of the problems created by an already enlarged death row irrespective of prospective changes in habeas law. At worst, they were a kowtow to conservative members of the Clemency Board who wanted to expedite executions regardless of the cost to human life. Regardless of which view one accepts, the new rules should be viewed as merely a starting point in revising the clemency process. In the meantime, Governor Chiles should not let his personal feelings and philosophies override considerations of justice, mercy, and the public interest in his exercise of the clemency power.

 [*280]  APPENDIX
 
1992 Rules of Executive Clemency applicable to commutation of death sentences
 
1. Statement of Policy

Executive Clemency is a power vested in the Governor by the Florida Constitution of 1968. Article IV, Section 8(a) of the Constitution provides:

Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.

Clemency is an act of grace proceeding from the power entrusted with the execution of the laws and exempts the individual upon whom it is bestowed from all or any part of the punishment the law inflicts for a crime committed.

The Governor and members of the Cabinet collectively are the Clemency Board.
 
2. Office of Executive Clemency

In order to assist in the orderly and expeditious exercise of this executive power, the Office of Executive Clemency is created to process those matters of Executive Clemency requiring approval of the Governor and three members of the Cabinet. These rules are created by mutual consent of the Clemency Board to assist persons in applying for clemency and to provide guidance to the members of the Clemency Board; however nothing contained herein can or is intended to limit the authority given to the Clemency Board in the exercise of its constitutional prerogative.

The Governor with the approval of three members of the Cabinet shall appoint a Coordinator who shall appoint all assistants. The Coordinator and assistants shall comprise the Office of Executive Clemency. The Coordinator shall keep a proper record of all proceedings, and shall be the custodian of all records.
 
3. Parole and Probation

The Clemency Board will not grant or revoke parole or probation, and such matters will not be entertained by the Clemency Board.
 
 [*281]  15. Commutation of Death Sentences

This Rule applies to all cases where the sentence of death has been imposed. The Rules of Executive Clemency are inapplicable to cases where inmates are sentenced to death, except Rules 1, 2, 3, 15 and 16.

A. In all cases where the death penalty has been imposed, the Florida Parole Commission shall conduct a thorough and detailed investigation into all factors relevant to the issue of clemency. The investigation shall include (1) an interview with the inmate (who may have legal counsel present) by at least three members of the Commission; (2) an interview, if possible, with the trial attorneys who prosecuted the case and defended the inmate; and (3) an interview, if possible, with the victim's family. The investigation shall begin immediately after the Commission receives a written request from the Governor and shall be concluded within 90 days of the written request. After the investigation is concluded, the members of the Commission who personally interviewed the inmate shall prepare and issue a final report on their findings and conclusions. The report shall include any statements and transcripts that were obtained during the investigation. The report shall contain a detailed summary from each member of the Commission who interviewed the inmate on the issues presented at the clemency interview. The report shall be forwarded to all members of the Clemency Board within 120 days of the written request from the Governor for the investigation.

B. After the report is received by the Clemency Board, the Coordinator shall place the case on the agenda for the next scheduled meeting or at a specially called meeting of the Clemency Board, if, as a result of the investigation, any member of the Clemency Board requests a hearing within 30 days of receiving the report. Once the hearing is set, notice shall be given to the appropriate state attorney, attorney for the inmate, and the victim's family.

C. Notwithstanding any provision to the contrary in the Rules of Executive Clemency, in any case in which the death sentence has been imposed, the Governor may at any time place the case on the agenda and set a hearing for the next scheduled meeting or at a specially called meeting of the Clemency Board.

D. Upon request, a copy of the actual transcript of any statements or testimony of the inmate that are made part of the report shall be provided to the state attorney, attorney for the inmate, or victim's family. The attorney for the state or the inmate, the victim's family, the inmate, or any other interested person may file a written statement, brief or memorandum on the case up to 10 days prior to the clemency hearing, copies of which will be distributed to the members of the Clemency Board. The person filing such written information  [*282]  should provide 10 copies to the Coordinator of the Office of Executive Clemency.

E. Due to the sensitive nature of the information contained in the report, it shall be confidential. The report shall not be made available for public inspection or distribution and shall be made available only to the members of the Clemency Board and their staff to assist in determining the request for clemency.

F. At the clemency hearing for capital punishment cases, the attorneys for the state and the inmate may present oral argument each not to exceed 15 minutes. A representative of the victim's family may make an oral statement not to exceed 5 minutes.

G. If a commutation of the death sentence is ordered by the Governor with the approval of three members of the Clemency Board, the original order shall be filed with the Secretary of State, and a copy of the order shall be sent to the inmate, the attorneys for each side, a representative of the victim's family, the Secretary of the Department of Corrections and the sentencing judge.
 
16. Confidentiality of Records and Documents

Due to the nature of the information presented to the Clemency Board, all records and documents generated and gathered in the clemency process as set forth in the Rules of Executive Clemency are confidential and shall not be made available for inspection to any person except members of the Clemency Board and their staff. The Governor has the sole discretion to allow records and documents to be inspected or copied.

FOOTNOTES:
n1 Consisting of the Governor and Cabinet. Fla. Const. art. IV, § 8(a).

n2 As amended through December 18, 1991. See Fla. R. Exec. Clemency 18 (1992) (effective dates).

n3 From 1890-1910, there was at least one commutation for every three executions; between 1924 and 1966 there was still better than one commutation for every four executions. See Vivien M.L. Miller, Murder, Punishment and the State Board of Pardons in Florida, 1890-1910, at 41 (1990) (unpublished M. Arts thesis, Florida State University); Margaret Vandiver, Race, Clemency, and Executions in Florida: 1924-1966, at 168 (1983) (unpublished M. Arts thesis, Florida State University).

n4 Fla. R. Exec. Clemency 1 (1992)

n5 In Florida, the Governor may grant a reprieve not exceeding 60 days, Fla. Const. art. IV, § 8(a), but may grant successive reprieves which taken together exceed a period of 60 days. In re Advisory Opinion to the Gov., 55 So. 865 (Fla. 1911).

n6 "The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." U.S. Const. art. II, § 2, cl. 1.

n7 See Kan. Const. art. I, § 7; Md Const. art. II, § 20; Minn. Const. art. V, § 7; Miss. Const. art. V, § 124; N.H. Const. pt. 2, art. 52; N.J. Const. art. V, § 2; N.M. Const. art. V, § 6; R.I. Const. amend. II; Tenn. Const. art. III, § 6; Vt Const. ch. II, § 20.

n8 See U.S. Const. art. II, § 2, cl. 1; Alaska Const. art. II, § 21; Ariz. Const. art. V, § 5; Ark Const. art. VI, § 18; Colo. Const. art. IV, § 7; Haw. Const. art. V, § 5; Ill. Const. art. V, § 12; Ind. Const. art. V, § 17; Iowa Const. art. IV, § 16; Kan. Const. art. I, § 7; Ky. Const. § 77; Me. Const. art. V, pt. 1, § 11; Md. Const. art. II, § 20; Mich. Const. art. V, § 14; Mo. Const. art. IV, § 7; Mont. Const. art. VI, § 12; N.J. Const. art. V, § 2; N.M. Const. art. V, § 6; N.Y. Const. art. IV, § 4; N.C. Const. art. III, § 5; Ohio Const. art. III, § 2; Or. Const. art. V, § 14; P.R. Const. art. IV, § 4; S.D. Const. art. IV, § 3; Tenn. Const. art. III, § 6; Vt. Const. ch. II, § 20; Va. Const. art. V, § 12; Wash. Const. art. III, §§ 9, 11; W. Va. Const. art. VII, § 11; Wis. Const. art. V, § 6; Wyo. Const. art. IV, § 5.

n9 See Del. Const. art. VII; Fla. Const. art. IV, § 8; Neb. Const. art. IV, § 13; N.H. Const. pt. 2, art. 52.

n10 Board members are appointed solely to consider applications for clemency. See La. Const. art. IV, § 5 (board appointed by Governor and confirmed by Senate); Mass. Const. pt. 2, ch. II, § 1, art. VIII (board appointed by Governor with advice and consent of advisory committee); Okla. Const. art. VI, § 10 (three board members appointed by Governor, one by Chief Justice of Supreme Court, and one by Presiding Judge of Court of Criminal Appeals); Tex. Const. art. IV, § 11 (board appointed by Governor with advice and consent of Senate).

n11 Pa. Const. art. IV, § 9 (board includes Lieutenant Governor, Attorney General, and three members appointed by Governor and confirmed by Senate).

n12 Conn. Gen. Stat. Ann. §§ 18-24a to -30 (West 1985); Ga. Const. art. IV, § 2; Idaho Const. art. IV, § 7; S.C. Code Ann. § 24-21-920 (Law. Co-op. 1976).

n13 Ala. Const. § 124 (Governor may grant reprieve or commutation of death sentence only; other clemency power rests with Legislature, which exercises its power through a board that is appointed by Governor from short list and confirmed by Senate, see Ala. Code §§ 15-22-20 to -40 (1975)); Miss. Const. art. V, § 124 (Governor has full clemency power), art. X, § 225 (Legislature may provide for commutation of sentence of convicts for good behavior); R.I. Const. art. VII § 4 (Governor may grant reprieves), amend. II (Governor may grant clemency with consent of Senate). In Utah, the Governor has the power to grant reprieves; other clemency power is exercised by a board whose composition is determined by statute. Utah Const. art. VII, § 12. Under current law, the board is composed of six members appointed by the Governor with the advice and consent of the Senate. Utah Code Ann. § 77-27-2 (1990).

n14 Cal. Const. art. V, § 8 (when applicant has been twice convicted of felony, Governor may grant clemency only with recommendation of Supreme Court; in other cases, Governor has exclusive clemency authority); Minn. Const. art. V, § 7 (clemency power exercised by board composed of Governor, Attorney General, and Chief Justice of Supreme Court); Nev. Const. art. V, § 13 (Governor may grant reprieves), § 14 (clemency power exercised by board composed of Governor, Attorney General, and Supreme Court); N.D. Const. art. V, § 6 (clemency power exercised by board composed of Governor, Attorney General, Chief Justice of Supreme Court, and two electors appointed by Governor).

n15 The Federalist No. 74 (Alexander Hamilton), reprinted in 4 The Founders' Constitution 16 (Philip B. Kurland & Ralph Lerner eds., 1987).

n16 Fla. Const. art. I, § 1.

n17 Montgomery v. Cleveland, 98 So. 111, 114 (Miss. 1923).

n18 Id.

n19 Id.

n20 Ex parte Crump, 135 P. 428, 433 (Okla. Crim. App. 1913).

n21 See, e.g., Brown v. Curb, 603 P.2d 1357 (Cal. 1979); Montgomery v. Cleveland, 98 So. 111 (Miss. 1923); Ex parte Crump, 135 P. at 433. ("In all regular governments there is no interregnum, and there should always be some one capable of administering the laws at the head of the government."). Compare Cal. Const. art. V, § 10 ("The Lieutenant Governor shall act as Governor during the . . . absence from the State . . . of the Governor" construed by Brown, 603 P.2d 1357) with Fla. Const. art. IV, § 3(b) (circumstances under which Lieutenant Governor shall act as Governor; no reference made to absence from the state).

n22 Biddle v. Perovich, 274 U.S. 480, 486 (1927).

n23 Id. at 486-87; Stone v. Burch, 154 So. 128, 129 (Fla. 1934).

n24 Biddle, 274 U.S. at 487. For example, banishment could not be substituted as an alternative form of punishment. Instead, a prisoner could be freed on the condition that the prisoner voluntarily leave the jurisdiction and never return. See, e.g., Ex parte Marks, 28 P. 109 (Cal. 1883) (pardon conditioned on prisoner leaving California and never returning; prisoner was released but refused to leave the State, and was taken back into custody).

In Hoffa v. Saxbe, 378 F. Supp. 1221 (D.D.C. 1974), the court clarified the phrase "authorized by law." The new sentence must be directly related to the public interest and must not unreasonably infringe upon the fundamental rights of the defendant. Id. at 1236.

n25 The sovereignty may attach conditions, precedent or subsequent, on the performance of commutation. See 4 William Blackstone, Commentaries *394; infra note 80 and accompanying text.

n26 A.T.H. Smith, The Prerogative of Mercy, the Power of Pardon and Criminal Justice, 1983 Pub. L. 398, 422-23.

n27 See supra note 15.

n28 Id.

n29 See 3 Henry Weihofen, Attorney General's Survey of Release Procedures 39 (1938).

n30 Id. at 39-40.

n31 See Texas To Review 200 Abuse Cases: Inmates Could Be Freed in Domestic Slayings, Palm Beach Post, May 18, 1991, at 17A (Texas Legislature orders re-examination of domestic abuse convictions).

n32 In February 1991, Maryland's governor commuted the sentences of eight women who killed abusive men, saying he was convinced the women acted in self defense. Terms Commuted for 8 Abused Women, Chi. Trib., Feb. 20, 1991, at A15; Howard Schneider, Md. To Free Abused Women; Schaefer Commutes 8 Terms, Citing Violence, Wash Post, Feb. 20, 1991, at A1. In December 1990, Ohio's outgoing governor commuted the sentences of 25 women -- including all four women on Ohio's death row -- who had been convicted of killing or assaulting husbands or companions whom they said had physically abused them. Alan Johnson, Celeste Commutes Death Sentences of Eight Killers, Columbus Dispatch, Jan. 11, 1991, at A1; Isabel Wilkerson, Ohio Frees 25 Battered Women Who Fought Back, Detroit Free Press, Dec. 22, 1990, at A1.

n33 See 3 Weihofen, supra note 29, at 42.

n34 See Gregg v. Georgia, 428 U.S. 153 (1976).

n35 Joseph Story, 3 Commentaries on the Constitution § 1488 (1833), reprinted in 4 The Founders' Constitution 25, 26 (Philip B. Kurland & Ralph Lerner eds., 1987).

n36 Ex parte Crump, 135 P. 428, 431 (Okla. Crim. App. 1913).

n37 Henry v. State, 136 P. 982, 989 (Okla. Crim. App. 1913).

n38 Id.; Eacret v. Holmes, 333 P.2d 741, 744 (Or. 1958); Solie M. Ringold, The Dynamics of Executive Clemency, 52 A.B.A. J. 240 (1966); Winthrop Rockefeller, Executive Clemency and the Death Penalty, 21 Cath. U.L. Rev. 94 (1971); Brochin, infra note 115.

n39 Henry, 136 P. at 988.

n40 Id.

n41 Kevin Krajick, The Quality of Mercy, 5 Corrections Mag., June 1979, at 49.

n42 Raymond Theim, deputy pardon attorney, U.S. Dep't of Justice, has been quoted as saying, "Clemency is bestowed as an act of grace, not as a matter of right." Id. at 47-48.

n43 Eacret v. Holmes, 333 P.2d 741, 744 (Or. 1958).

n44 Henry v. State, 136 P. 982, 988 (Okla. Crim. App. 1913).

n45 Id.; Ex parte Crump, 135 P. 428, 431 (Okla. Crim. App. 1913).

n46 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.

n47 Solem v. Helm, 463 U.S. 277, 303 (1983); Gregg v. Georgia, 428 U.S. 153, 199 (1976).

n48 Held violative of the cruel and unusual punishment clause in Furman v. Georgia, 408 U.S. 238 (1972).

n49 Gregg, 428 U.S. at 199.

n50 See Solem, 463 U.S. at 303.

n51 Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir. 1988), cert. denied, 488 U.S. 1034 (1989).

n52 U.S. Const. amend. XIV.

n53 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 467 (1981); Bundy, 850 F.2d at 1423.

n54 Bundy, 850 F.2d at 1423.

n55 Id.

n56 Fla. R. Exec. Clemency (1976), superseded by Fla. R. Exec. Clemency (1992).

n57 Bundy, 850 F.2d at 1424.

n58 Id.

n59 Fla. R. Exec. Clemency 2 (1992).

3. Equal Protection

The courts have not yet considered the one constitutional clause that might be implicated by the exercise of clemency -- the Equal Protection Clause. n60 However, this clause would likely be violated if a governor acted in a blatantly discriminatory manner, such as commuting the death sentences of all inmates of a certain race or gender. Although the courts have consistently held that a governor may grant clemency to anyone at his or her sole discretion, one hopes they would make an exception under these circumstances. n61

n60 U.S. Const. amend. XIV.

n61 See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 617-18 (1991) (Equal Protection Clause might apply to President's use of clemency powers).

n62 Compare Act of Mar. 30, 1822, § 2, 3 Stat. 654 (1822) and Act of Mar. 3, 1823, § 2, 3 Stat. 750 (1823) with U.S. Const. art. II, § 2, cl. 1.

n63 Fla. Const. of 1838, art. III, § 11. "[A]fter conviction" probably meant after verdict of guilty, not judgment or sentence. See State ex rel. Barnes v. Garrett, 188 S.W. 58 (Tenn. 1916) (discussing use of the same language in other states).

n64 See Fla. Const. of 1868, art. V, §§ 11, 12.

n65 Id.

n66 Id.

n67 Id.

n68 This right did not include the power to regulate the granting of clemency. In 1935 the Legislature passed a law requiring the Clemency Board to commute any death sentence the Florida Supreme Court had affirmed by an equally divided vote. Ch. 16810, Laws of Fla. (1935). The Clemency Board refused to comply, and the Florida Supreme Court struck down the statute as a violation of Florida's separation of powers clause. Ex parte White, 178 So. 876 (Fla. 1938).

n69 Fla. Const. of 1885, art. IV, § 12 (amended 1896). This change may have reflected the view that the body which upheld the legality of a conviction and sentence is poorly placed to grant relief from the same conviction or sentence. A similar view is often expressed about having the state's chief law enforcement officer and prosecutor, the attorney general, on the Clemency Board. For arguments against having the Cabinet share any power with the governor, see Joseph W. Landers, Jr., The Myth of the Cabinet System: The Need To Restructure Florida's Executive Branch, 19 Fla. St. U.L. Rev. 1089 (1992); Jon C. Moyle, Why We Should Abolish Florida's Elected Cabinet, 6 Fla. St. U.L. Rev. 591 (1978).

n70 Fla. Const. art. IV, § 8(a).

n71 Id.

n72 Sullivan v. Askew, 348 So. 2d 312, 314 (Fla.), cert. denied, 434 U.S. 878 (1977).

n73 Fla. Const. art. IV, § 8(a).

n74 Id.

n75 Sullivan, 348 So. 2d at 314; Singleton v. State, 21 So. 21 (Fla. 1897); see also Ex parte White, 178 So. 876 (Fla. 1938) (discussed supra note 68). Cf. In re Advisory Opinion of the Gov. Civil Rights, 306 So. 2d 520 (Fla. 1975) (statute providing for automatic reinstatement of civil rights after convicted felon has been discharged from parole or released from custody unconstitutionally invades the authority of the Clemency Board).

n76 Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA), dismissed, 384 So. 2d 1377 (Fla.), aff'd, 389 So. 2d 1181 (Fla. 1980) (dictum).

n77 In re Advisory Opinion of the Gov., 334 So. 2d 561 (Fla. 1976).

n78 1986 Fla. Att'y Gen. Ann. Rep. 114.

n79 Bundy v. State, 497 So. 2d 1209, 1211 (Fla. 1986). In Bundy the Florida Supreme Court also found that courts need not grant a stay while a condemned person prepares and presents an application for executive clemency when the Clemency Board previously had the opportunity to determine that the condemned was not and never would be a likely candidate for executive clemency. Id.

n80 State ex rel. Bailey v. Mayo, 65 So. 2d 721, 722 (Fla. 1953). For example, the Clemency Board could commute a death sentence conditioned on the convict agreeing never to attempt to escape from prison. If an escape were later made or attempted, then the Board would have the duty to determine whether or not the convict did or attempted to escape and whether the escape or attempt constituted a breach of the conditions of the commutation. Advisory Opinion to the Gov., 23 So. 2d 619, 620 (Fla. 1945).

n81 Fla. Stat. § 925.035(4)(1991).

n82 Id.; An attorney so appointed is entitled to be compensated for reasonable fees and costs, paid out of general revenue funds budgeted to the Department of Corrections. See also Remeta v. State, 559 So. 2d 1132 (Fla. 1990). Although state law caps the allowed compensation, the Florida Supreme Court has held that when court-appointed counsel is authorized, "courts have the authority to exceed statutory fee caps . . . when necessary to ensure effective representation." Id. at 1135.

n83 Fla. R. Exec. Clemency 2 (1992). The current rules, promulgated in 1991, are significantly different from the previous ones. Created after the 1968 amendments to the Florida Constitution stripped from the Legislature the power to regulate clemency, the old rules can be found as an appendix to Sullivan v. Askew, 348 So. 2d 312 (Fla.), cert. denied, 434 U.S. 878 (1977) and as an appendix to the Florida Administrative Code Annotated.

n84 Fla. R. Exec. Clemency 2 (1992).

n85 Fla. R. Exec. Clemency (1976), superseded by Fla. R. Exec. Clemency (1992).

n86 In 1976, Rule 7, entitled, "Commutation of Death Sentences," provided: "[a]ll Rules of Executive Clemency are inapplicable to cases of inmates sentenced to death, except Rules 1, 2, 3 and 17." Fla. R. Exec. Clemency 7 (1976). Currently, Rules 1, 2, 3, 15, and 16 (reprinted in the Appendix to this Comment) apply to cases where inmates are sentenced to death. Fla. R. Exec. Clemency 15 (1992).

n87 Fla. R. Exec. Clemency 15 (1992).

n88 The impact of these changes is elaborated upon infra in the text accompanying notes 152-55.

n89 Fla. R. Exec. Clemency 15(A) (1992) ("In all cases where the death penalty has been imposed, the Florida Parole Commission shall conduct a thorough and detailed investigation into all factors relevant to the issue of clemency . . . [upon] written request from the Governor.")

n90 Id.

n91 Id.

n92 Id. at r. 15(E), 16.

n93 Id. at r. 15(D).

n94 Id.

n95 Id. at r. 15(B).

n96 Id. at r. 11(A).

n97 Id. at r. 15(B).

n98 Id. at r. 15(C).

n99 Id. at r. 15(F).

n100 Id. at r. 2.

n101 Id. at r. 4.

n102 Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir. 1988), cert. denied, 488 U.S. 1034 (1989).

n103 Lori Rozsa, Lack of Money Halts Opening of Prison for the Condemned, Miami Herald, Apr. 13, 1992, at A1.

n104 As required by Fla. Stat. §§ 921.141(4), .142(5) (1991).

n105 See supra text accompanying note 74.

n106 Fla. R. Exec. Clemency 15(A)(1992).

n107 See id. at r. 15(b).

n108 Fla. Stat. § 922.09 (1991).

n109 Id. § 922.08. The Governor is to stay execution of the sentence until the person is no longer pregnant. Interestingly, under common law a woman was entitled to a stay for only one pregnancy. 4 Blackstone, supra note 25, at *387-88.

n110 Fla. Stat. § 922.07 (1991); Goode v. Wainwright, 448 So. 2d 999, 1002 (Fla.) (finding that placing the determination of sanity with the Governor does not deny due process to the condemned), cert. denied, 466 U.S. 932 (1984). After the Governor determines that the prisoner is sane enough to be executed, counsel for the prisoner may move for a stay of execution and a hearing based on the prisoner's alleged insanity. Fla. R. Crim. P. 3.811-.812.

In Blackstone's day an insane person could not be executed because "the law knows not but he might have offered some reason, if in his senses, to have stayed" the execution. 4 Blackstone, supra note 25, at *389. Similarly, both section 922.07, Florida Statutes, and Florida Rule of Criminal Procedure 3.811(b) state that a person is insane for purposes of execution if such person lacks the mental capacity to understand the fact of the impending execution and the reason for it.

n111

[T]he Governor's warrant is . . . a negation rather than an affirmation. It is the equivalent of a declaration that he declines to interfere with the execution of the death sentence, that the law shall take its course, the judgment and conviction be executed so far as any power vested in him shall be exercised to the contrary.
Jarvis v. Chapman, 159 So. 282, 285 (Fla. 1934).

n112 Fla. Stat. § 922.14 (1991).

n113 Id. § 922.10.

n114 See supra text accompanying notes 72-79.

n115 Bobby Brochin, Special Counsel to Florida Governor Lawton Chiles, The Role of the Executive in the Capital Punishment Process, Address at the Florida State University Law Review Capital Punishment Symposium (Feb. 7, 1992) (videotape available in Florida State University Law Library).

n116 However, when Brochin's assertions are relied upon in this Comment, they will be identified as such.

n117 Brochin, supra note 115.

n118 Id.

n119 Not only is there some indication that clemency is a required part of the capital punishment system, but the Governor himself implicitly recognizes this through what Brochin asserts is the Governor's refusal to sign a death warrant before considering clemency.

n120 See Hoffa v. Saxbe, 378 F. Supp. 1221, 1231 (D.D.C. 1974).

n121 Brochin, supra note 115.

n122 See id.; see also Note, A Matter of Life and Death: Due Process Protection in Capital Clemency Proceedings, 90 Yale L.J. 889, 893 n.17 (1981):

Thus, the clemency authority may act out of opposition to capital punishment, Eacret v. Holmes, 333 P.2d 741, 743 (Or. 1958), even though jurors [opposed to the death penalty] may be barred from serving in capital cases, Witherspoon v. Illinois, 391 U.S. 510, 516-18 (1968), and appellate courts may not act upon such personal feelings, Furman v. Georgia, 408 U.S. 238, 375 (1972) (Burger, C.J., dissenting); . . . (Blackmun, J., dissenting).

n123 Brochin, supra note 115.

n124 On June 9, 1992, the Clemency Board was asked to spare the life of a Vietnam veteran who suffered from post-traumatic stress disorder and from the medication intended to help him. Governor Asked To Spare Veteran, Sarasota Herald-Trib., June 10, 1992, at 6B.

n125 Claudia Card, On Mercy, Phil. Rev., Apr. 1972, at 182, 201.

n126 Id. at 203.

n127 Id. at 201.

n128 Id. at 203.

n129 See id.

n130 See James P. Goodrich, The Use and Abuse of the Power To Pardon, 11 J. Am. Inst. Crim. L. & Criminology 334, 340-41 (1920).

n131 New constitutional rules of criminal procedure are not applicable to cases which became final before the new rules were announced. This includes rules governing capital penalty cases, except rules (1) placing certain kinds of primary, private, individual conduct beyond the power of the states to proscribe; (2) prohibiting a certain category of punishment for a class of defendants because of their status or offense; or (3) without which the likelihood of an accurate conviction is seriously diminished. Penry v. Lynaugh, 492 U.S. 302, 313 (1989); Teague v. Lane, 489 U.S. 288, 311-13 (1989).

n132 See supra note 25 and accompanying text.

n133 Brochin, supra note 115.

n134 Id.

n135 Furman v. Georgia, 408 U.S. 238 (1972).

n136 See supra text accompanying note 133.

n137 Fla. Stat. § 922.14 (1991). Remarkably, this has never occurred.

n138 As Hamilton argued it should be. See supra text accompanying note 15.

n139 "[T]he governor may . . . grant reprieves not exceeding sixty days." Fla. Const. art. IV, § 8(a).

n140 Id.

n141 In re Advisory Opinion to the Gov., 55 So. 865 (Fla. 1911).

n142 After a death warrant is signed, a condemned has only 30 days within which to file motions or petitions for postconviction or collateral relief. Fla. R. Crim. P. 3.851.

n143 Joseph L. Hoffmann, Starting from Scratch: Rethinking Federal Habeas Review of Death Penalty Cases, 20 Fla. St. U.L. Rev. 133 (1992).

n144 Brochin, supra note 115. Recall that this is a decision not required by positive law.

n145 For example: At the clemency hearings on March 10, 1992, the Clemency Board heard from the counsel of condemned inmate Lawrence Lewis. Lewis' counsel spoke of his recent appointment and Lewis' difficulty in obtaining counsel for collateral appeals. He read a statement written by Lewis which could have been submitted in writing with equal impact. He also refused to discuss the specific facts of the case based on his fear that it might jeopardize collateral appeals. Hearing of the Florida Clemency Board, Mar. 10, 1992.

n146 This approach is hardly novel. A pre-Furman investigation of clemency procedures found that every state examined made a conscious effort to schedule hearings reasonably close to the scheduled date of execution. Elkan Abramowitz & David Paget, Note, Executive Clemency in Capital Cases, 39 N.Y.U.L. Rev. 136, 152 (1964). The investigation uncovered the practice in one state, Connecticut, of scheduling the commutation hearings on the morning of the execution. Id. at 154.

n147 See Rozsa, supra note 103, at A1. ("It costs an average of $ 3.2 million to execute an inmate, after fees for attorneys and psychiatrists and other costs are paid.")

n148 Even after the first clemency hearing of a case, the Governor may at any time place that case on the agenda and set a hearing for the next scheduled meeting or at a specially called meeting of the Clemency Board. Fla. R. Exec. Clemency 15(C) (1992).

n149 Id.

n150 See Sawyer v. Whitley, 945 F.2d 812 (5th Cir. 1991) (petitioner cannot obtain federal review on the merits of an abusive claim unless he demonstrates that the jury would not have been authorized to sentence him to death), aff'd, 112 S. Ct. 2514 (1992).

n151 Fla. R. Exec. Clemency 7(1) (1976); Fla. R. Exec. Clemency 15(A) (1992).

n152 Brochin, supra note 115.

n153 Fla. R. Exec. Clemency 15 (1992).

n154 Fla. R. Exec. Clemency 7A (1976).

n155 "The investigation shall begin immediately after the Commission receives a written request from the Governor and shall be concluded within 90 days of the written request." Fla. R. Exec. Clemency 15A (1992).

n156 The supreme court must issue a death warrant when the Governor unjustifiably fails to do so, on application of the Department of Legal Affairs. Fla. Stat. § 922.14 (1991). Even if a warrant does issue, the Governor may grant reprieves until he leaves office. See text accompanying note 137.

n157 Id.

n158 See supra note 142 and accompanying text.

n159 Discussed supra text accompanying notes 92-94.

n160 Cf. 28 C.F.R. § 1.3 (1991) (rules governing applications for Presidential clemency) (" A petition for commutation of sentence . . . should be filed only if no other form of relief is available. . . .").

n161 Fla. R. Exec. Clemency 15(A) (1992).

n162 Fla. R. Crim. P. 3.851. When a death warrant is signed and execution is set for at least 60 days from the date of signing, Rule 3.851 severely limits the condemned's ability to petition for collateral relief more than 30 days from the date of signing.

n163 Fla. Const. art. IV, § 8(a).

n164 Fla. Sta. § 922.06 (1991).

n165 Id.; id. § 924.14.

n166 The new Rules are discussed supra part III, section C.

n167 Fla. R. Exec. Clemency 15(A) (1992). Cf. Fla. R. Exec. Clemency 7(A) (1976).

n168 Fla. R. Exec. Clemency 15(A) (1992).

n169 Former Arkansas Governor Winthrop Rockefeller posited that dispassionate consideration of a crime, tempered by five or ten years of delay, may actually deter all scheduled executions. See Winthrop Rockefeller, Executive Clemency and the Death Penalty, 21 Cath. U. L. Rev. 94, 98 (1971).

n170 Fla. R. Exec. Clemency 15(G) (1992).

n171 James P. Goodrich, past Governor of Indiana, claims that when considering clemency, he usually asked the sentencing judge and prison officials for their recommendations. James P. Goodrich, The Use and Abuse of the Power To Pardon, 11 J. Am. Inst. Crim. L & Criminology 334, 339 (1920).

n172 Fla. R. Exec. Clemency 15(D)-(E), 16 (1992).

n173 Fla. R. Exec. Clemency 7(B) (1976).

n174 Fla. R. Exec. Clemency 15(D) (1992).

n175 Id. at r. 16.

n176 But cf. Brown v. Wainwright, 392 So. 2d 1327, 1331-33 (Fla.) (exposure of Florida Supreme Court to material withheld from appellant did not taint appellate review), cert. denied, 454 U.S. 1000 (1981), cited in Note, supra note 122, at 905 n.84.

n177 Fla. R. Exec. Clemency 15(F) (1992).

n178 Id.

n179 Fla. R. Exec. Clemency 7(D) (1976).

n180 Fla. R. Exec. Clemency 15(F) (1992).

n181 Florida Rule of Executive Clemency 11(C), which applies to all cases before the Board except those involving the death sentence. The procedure for death sentence cases is covered in Rule 15. (Any person making an oral presentation to the Clemency Board is allowed not more than five minutes, and all persons making oral presentations in favor of an application are allowed cumulatively no more than 20 minutes).

n182 Id.

n183 Grounds given for excluding the condemned include (1) the condemned has nothing personally to contribute which could not be submitted in writing or through counsel; (2) the presence of the condemned could only create a highly charged atmosphere; and (3) transporting the condemned to the hearing creates a security problem. Elkan Abramowitz & David Paget, Note, Executive Clemency in Capital Cases, 39 N.Y.U. L. Rev. 136, 155 (1964). Of these grounds, the first two are even more true when allowing the victim's family to testify, which the rules allow, and the third ground could be solved by holding the hearing at the state prison, which would force the Board members to make a six-hour trip four times each year.

n184 Brochin, supra note 115.

n185 Id.

n186 Id.

n187 Vivian Berger, Vice Dean of the Columbia University School of Law, presents well the dangers to victims of allowing victim impact evidence in any context. See Vivian Berger, Payne And Suffering -- A Personal Reflection and A Victim-Centered Critique, 20 Fla. St. U.L. Rev. 21 (1992).

n188 Which explains why no death sentence has been commuted since the first two years of Governor Graham's first term. See Brochin, supra note 115.

n189 In other words, eliminate Florida Rules of Executive Clemency 15(E) and 16.

n190 Id.

n191 For the first time in more than a decade. See Brochin, supra note 115.