JOSEPH B. SCHIMMEL
... 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. ...
[*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
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
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.
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
[*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
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
[*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
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
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.
[*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
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.
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
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
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
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.
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
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.
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.
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
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
The Governor and members of the Cabinet collectively are the Clemency
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
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
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
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.
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.
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.,
n16 Fla. Const. art. I, § 1.
n17 Montgomery v. Cleveland, 98 So. 111, 114 (Miss. 1923).
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
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.
n29 See 3 Henry Weihofen, Attorney General's Survey of Release Procedures
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.
n41 Kevin Krajick, The Quality of Mercy, 5 Corrections Mag., June 1979, at
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.
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.
n56 Fla. R. Exec. Clemency (1976), superseded by Fla. R. Exec. Clemency
n57 Bundy, 850 F.2d at 1424.
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
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.
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).
n72 Sullivan v. Askew, 348 So. 2d 312, 314 (Fla.), cert. denied, 434 U.S.
n73 Fla. Const. art. IV, § 8(a).
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
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.
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
n84 Fla. R. Exec. Clemency 2 (1992).
n85 Fla. R. Exec. Clemency (1976), superseded by Fla. R. Exec. Clemency
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
n92 Id. at r. 15(E), 16.
n93 Id. at r. 15(D).
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.
[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.
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
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.
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).
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
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.
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).
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)
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
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)
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
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).
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).
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.
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
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
n189 In other words, eliminate Florida Rules of Executive Clemency
15(E) and 16.
n191 For the first time in more than a decade. See Brochin, supra note