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: In Search of Clemency
Procedures We Can Live With: What Process is Due in Capital Clemency
Proceedings After Ohio Adult Parole Authority v. Woodard? |
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Capital
Defense Journal
Fall, 1998
11 Cap. Def. J. 5 |
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Brian S. Clarke*
* J.D. Candidate, May 1999, Washington & Lee University School of Law;
B.A., University of North Carolina at Chapel Hill. Thank you to Professor
Penny J. White for her inspirational leadership. Also, many thanks to
Karen Fredenburg, Business Manager of the Washington & Lee Law Review,
for her assistance in getting this issue of the Capital Defense Journal to
press.
TEXT:
[*5]
I. Introduction
The United States Supreme Court has denied certiorari for the final time.
All state and federal appeals have been exhausted. The execution date has
been set. There is only one thing that can save the death row inmate from
the ultimate punishment: the proverbial call from the governor and a grant
of executive clemency.
This scene, although a veritable Hollywood cliche, is being played out in
prisons across America with increasing frequency. As of July 1, 1998,
there were 3,474 men and women on death row in America. n1 In 1996, with
the passage of the Anti-Terrorism and Effective Death Penalty
Act of 1996 n2 ("AEDPA") Congress sought to
"streamline" the federal habeas process and expedite executions.
n3 In the words of one commentator, AEDPA has "eviscerated . . . the
once great Writ [of Habeas Corpus]." n4 The changes wrought by AEDPA
have created a federal habeas system in which "results are more
important than process, [ ] finality is more important than fairness,
[and] it is more important to get on with executions than [to] determin[e]
whether convictions and sentences were fairly and reliably obtained."
n5 The current system "facilitates executions, but it does [*6]
so only at the price of being powerless to correct injustice in many
instances." n6
In this environment, the role that executive clemency
must play in the realm of capital punishment is becoming increasingly
important. Initially, this article will briefly examine the statutory
clemency schemes currently in use in states that have the death
penalty. Next, it will discuss the applicability of the Due
Process Clause to capital clemency proceedings. Finally, it will seek to
determine exactly what process is due in capital clemency proceedings.
II. The Lay of the Land: Current Statutory Clemency Schemes
All of the thirty-eight states n7 that authorize capital punishment also
have constitutional or statutory provisions for clemency. n8 In the vast
majority of
[*7] states, the ultimate power to grant or deny clemency is
vested in the executive. Several states, however, have split the clemency
power between the Governor and an advisory board, often a parole board.
Twenty-five states require some sort of mandatory action by either the
Governor, the parole board or both. Typically, these states require either
an investigation by the parole board, a hearing before the parole board,
or both: thirteen states require an investigation; n9 eleven states
require a hearing; n10 and three states require both. n11 Four of the
twenty-five states that require some mandatory action require only that
the Governor or the board "consider" n12 or "review"
n13 the application.
Included in the group of states that require mandatory action on petitions
for clemency are Florida, Georgia, and Texas, states which, like Virginia,
are very active capital punishers. n14 Many of the landmark Supreme Court
decisions in this realm have originated in these three states. n15 In
fact, Virginia's capital sentencing [*8] scheme was largely
adopted from those of Georgia and Texas. The language of Virginia's
"future dangerousness" aggravator was modeled on that of Texas
following the Supreme Court's decision in Jurek v. Texas. n16 Similarly,
the language of Virginia's "vileness" aggravator was copied
verbatim from that of Georgia following the Supreme Court's decision in
Gregg v. Georgia. n17
In Florida, one of the top three capital punishers in the United States,
the Florida Parole Commission is required to "conduct a thorough and
detailed investigation into all factors relevant to the issue of
clemency" in every clemency application. n18 The investigation must
include, among other things, "an interview with the inmate (who may
have legal counsel present) by at least three members of the
Commission." n19 The Commissioners who personally interviewed the
inmate are then required to issue a report that includes their findings
and conclusions. n20 Following the issuance of this report, any Commission
member or the Governor may request a hearing to be held at the
Commission's next meeting. n21 [*9] At the hearing, "the
attorneys for the state and the inmate may present oral argument each not
to exceed 15 minutes." n22 Florida's clemency scheme provides inmates
with several important procedural protections: namely the right to have
their applications thoroughly investigated and the right to speak directly
with a members of the Commission. Both Georgia and Texas require
consideration and some investigation of clemency requests. n23 While not
nearly as protective as the procedures used in Florida, these clemency
schemes ensure that, at a minimum, the application is reviewed and
considered.
Eleven states, including Virginia, require no mandatory action by the
governor or board. n24 These states afford inmates absolutely no
"process" and give the executive virtually unfettered
discretion. In all but two of these eleven states, investigations into
applications for clemency may be undertaken only at the direction of the
governor. n25 There is no guaranty in any of these states that the
Governor will even look at the petition for clemency. The remainder of
this article will focus on the what process is due in clemency proceedings
and whether Virginia's clemency statute comports with these minimum
requirements.
III. Does the Due Process Clause Apply to Capital Clemency Proceedings?
The Supreme Court has recognized that "[c]lemency is deeply rooted in
our Anglo-American tradition of law, and is the historic remedy for
preventing miscarriages of justice where judicial process has been
exhausted." n26 Despite this recognition, however, the Court held in
Connecticut Board of Pardons v. Dumschat n27 that the Due Process Clause
n28 did not apply in non- capital clemency proceedings because there is no
constitutionally protected interest in such proceedings. n29 The Court
reasoned that because an inmate's "liberty" interest was
obviated when a valid conviction was obtained, n30 any interest the inmate
had in clemency was [*10] "simply a unilateral
hope." n31 On its facts, Dumschat did not address the issue of
whether due process protections were required in capital clemency
proceedings. n32 The majority of the lower courts that considered this
issue, however, have held that, based on Dumschat, the Due Process Clause
does not apply to capital clemency proceedings. n33
In Ohio Adult Parole Authority v. Woodard, n34 the Supreme Court finally
addressed this issue. n35 However, there was no majority opinion on the
issue of whether due process protection applies to capital clemency
proceedings. n36 Chief Justice Rehnquist delivered the judgment of the
Court and wrote an opinion in which Justices Scalia, Thomas, and Kennedy
joined. n37 The Chief Justice believed that Dumschat applied to capital
clemency proceedings and characterized a death row inmate's clemency
petition as a "unilateral hope" which was not subject to Due
Process protection. n38 He reasoned that the "Due Process Clause is
not [*11] violated where, as here, the procedures in question
do no more than confirm that the clemency . . . power is committed, as is
our tradition, to the authority of the executive." n39
Justice O'Connor, on the other hand, in an opinion which was joined by
Justices Breyer, Souter and Ginsberg, concluded that "some minimal
procedural safeguards apply to clemency proceedings." n40 Similarly,
Justice Stevens concluded that the Due Process Clause requires some
"minimal requirements" in clemency proceedings. n41 Thus, a
majority of the Court agreed on two critical points. First, the majority
recognized that a "prisoner under a death sentence remains a living
person and consequently has [a constitutionally protected] interest in his
life." n42 Second, the majority held "that some minimal
procedural safeguards apply to clemency proceedings." n43
These two conclusions will fundamentally alter clemency proceedings in
many states. This is the first time since the death penalty
was re-instituted in 1976 n44 that the Court has recognized the existence
of a "life" interest in any capital proceeding. n45 Virtually
all of the Court's due process cases have focused on the
"liberty" n46 and "property" n47 interests. Thus, the
Court's re-recognition of the "life" interest represents a major
shift for the Court. Further, the Court's conclusion that "some
minimal procedural due process safeguards are required in clemency
proceedings" will force many states, including Virginia, to reexamine
[*12] their capital clemency procedures. n48 This is
particularly true in states like Virginia whose clemency provisions
guaranty absolutely no "process" whatsoever.
IV. What Process Is Due in Clemency Proceedings?
In Woodard, the Court held only that "minimal procedural
safeguards" applied in capital clemency proceedings. n49 The Court,
however, did not discuss exactly what procedures were required. n50 There
are two sources to which one can turn in order to determine what process
must be afforded an inmate in clemency proceedings: the Ohio clemency
scheme that the Court tacitly approved in Woodard and the way in which the
Court has defined "the most basic elements of fair procedure" in
other contexts. n51
A. Ohio's Clemency Scheme
The Ohio clemency scheme "approved" in Woodard consisted of
several important steps. First, the Ohio Adult Parole Authority
("OAPA") must conduct a "thorough investigation." n52
Second, "if a stay has not yet been issued, [OAPA] must schedule a
clemency hearing 45 days before an execution for a date approximately 21
days in advance of the execution." n53 Third, "[OAPA] must also
[*13] advise the prisoner that he is entitled to a pre-hearing
interview with one or more parole board members." n54 Thus, every
death row inmate in Ohio who seeks executive clemency is
guaranteed an investigation of his or her case for clemency, a hearing
before OAPA, and a personal interview with one or more OAPA members.
The guarantees of notice and a hearing to Ohio inmates were especially
important to Justice O'Connor's determination of the case in Woodard. She
reasoned that the "process [Woodard] received, including notice of
the hearing and an opportunity to participate in an interview, comports
with . . . whatever limitations the Due Process Clause may impose on
clemency proceedings." n55 It is not at all clear that Justice
O'Connor would have found the requirements of due process satisfied in the
absence of notice and an opportunity to be heard. It is arguable,
therefore, that any clemency scheme that fails to guaranty inmates notice
and an opportunity to be heard, in the form of some type of hearing,
violates due process. This conclusion is supported by the decisions of the
Supreme Court in other contexts.
B. The Fundamentals of Due Process: An Opportunity to be Heard and an
Impartial Decision Maker
Several Supreme Court decisions regarding the requirements of procedural
due process in other contexts also provide some very important insight
into what process is due in clemency proceedings. The most complete
discussion of what procedures comprise the "fundamentals of due
process" can be found in Goldberg v. Kelly n56 and Mathews v.
Eldridge. n57 These two cases discussed the process required when the
government desired to terminate an individual's welfare or social security
benefits, respectively.
In Goldberg, the Court considered the narrow issue of "whether the
Due Process Clause requires that the recipient [of welfare benefits] be
afforded an evidentiary hearing before the termination of benefit"
and, if so, what procedures did due process require. n58 After determining
that a pre-termination evidentiary hearing was required, the Court
considered what "minimum procedural safeguards" n59 were
required in these proceedings. According to the Goldberg Court, [*14]
the Due Process Clause required, at a minimum, an opportunity to be heard
n60 and an impartial decision maker. n61 The Court's decision in Mathews,
regarding what process was due in a post-termination hearing on social
security disability benefits, echoed its holding in Goldberg.62 Each of
these requirements is discussed in detail below. n62
[*15]
1. Opportunity to be Heard
According to the Supreme Court in Goldberg, "'[t]he fundamental
requisite of due process is the opportunity to be heard.'" n63 The
"hearing must be 'at a meaningful time and [conducted] in a
meaningful manner." n64 Further, the "opportunity to be heard
must be tailored to the capacities of those who are to be heard." n65
The Court stated that "[i]t is not enough that [one] may present his
position to the decision maker in writing." n66 It reasoned that
"written submissions do not afford the flexibility of oral
presentations; they do not permit [one] to mold his argument to the issues
the decision maker appears to regard as important." n67 Additionally,
the Court stated that "where credibility and veracity are at issue [
] written submissions are a wholly unsatisfactory basis for
decision." n68 The Court went on to state that "where important
decisions turn on questions of fact, due process requires an opportunity
to confront and cross-examine adverse witnesses;" n69 and that the
individual must be allowed to present his case through retained counsel if
he so desires. n70
The various "minimal procedural safeguards" n71 discussed by the
Court in Goldberg in the context of welfare termination hearings apply
with equal force to clemency hearings. First, the private interest that is
at stake in clemency proceedings, the life of the inmate, is much more
substantial than the property "right" at issue in Goldberg. It
is very important in clemency proceedings to allow the inmate every
opportunity to convince the Governor or the board that he or she does not
deserve to die, for whatever reason. In many clemency proceedings, the
credibility and veracity of the inmate will undoubtedly be critical. If,
for example, the inmate is asserting that he or she has undergone a
complete religious "rebirth," the question of his or her
veracity may very well constitute the entire basis of decision. If there
are adverse witnesses, the inmate should be allowed to cross examine them
in order to best present his or her case for clemency. And cer- [*16]
tainly, the inmate should be allowed to retain counsel at his last
opportunity to avoid execution. Under the rationale of Goldberg, it is
apparent that clemency proceedings must include a personal
"hearing" of some sort. Clemency procedures that only guaranty
an inmate's ability to submit a written request are "wholly
unsatisfactory" and violative of due process. n72
As previously discussed, the Ohio clemency scheme approved in Woodard
guaranteed applicants three things: an investigation, an informal
interview, and a hearing before OAPA. n73 The guarantees of notice and
hearing to Ohio inmates were especially important to Justice O'Connor's
determination of the case in Woodard. She reasoned that the "process
[Woodard] received, including notice of the hearing and an opportunity to
participate in an interview, comports with . . . whatever limitations the
Due Process Clause may impose on clemency proceedings." n74 It is not
at all clear that Justice O'Connor would have found the requirements of
due process satisfied in the absence of notice and an opportunity to
participate in a hearing and an interview.
The clemency scheme used by the Commonwealth of Virginia is
constitutionally infirm on its face because it does not guaranty those who
apply for executive clemency an opportunity to be heard
in any meaningful way. n75 Not only does it fail to require a hearing on
the merits of every application for clemency as required by Goldberg, it
requires absolutely no action by anyone on the application. Virginia's
clemency scheme does not even guaranty that anyone will look at the
application and consider its merit. In short, Virginia's clemency scheme
guarantees inmates absolutely no process whatsoever. In light of the
Supreme Court's decision in Woodard and the description of the minimum
requirements of due process in Goldberg, Virginia's clemency scheme, on
its face, fails to meet the minimum requirements of due process of law
under the Fourteenth Amendment.
2. Impartial Decision Maker
The Court stated in both Goldberg and Matthews that "an impartial
decision maker is essential" under the Due Process Clause. n76 The
Court made a similar observation in Morrissey v. Brewer n77 wherein it
stated that one of the "minimum [*17] requirements of due
process" in a parole revocation hearing was "a 'neutral and
detached' hearing body." n78 This requirement is rooted in the basic
tenet that a "fair trial in a fair tribunal is a basic requirement of
due process." n79 As the Court stated in In re Murchison, n80
"our system of law has always endeavored to prevent even the
probability of unfairness" n81 and that in order "to perform its
high function in the best way 'justice must satisfy the appearance of
justice.'" n82 It is therefore beyond dispute that an "impartial
decision maker" is a basic and fundamental requirement of due
process.
Prior to the Supreme Court's decision in Woodard, several death row
inmates seeking executive clemency claimed that they were
denied due process because they were denied an impartial decision maker.
n83 These claims were based on the fact that at least one of the persons
who had the ultimate power to grant or deny clemency acted as the Attorney
General of the state during the pendency of many of the inmates' appeals.
In deciding these cases, each of which is discussed below, the courts
determined at the outset that due process protection did not apply to
capital clemency proceedings under Dumschat. n84
The first court to discuss this issue was the United States District Court
for the District of Arkansas in Pickens v. Tucker. n85 In Pickens, the
inmate, Edward Charles Pickens, brought a complaint for relief under 42
U.S.C.
1983 alleging that his "federal constitutional rights [were]
abrogated because Governor [Jim [*18] Guy] Tucker [could ]not
be impartial or objective" in ruling on his clemency application.
Tucker was formerly the Attorney General of Arkansas and
"participated in the early appellate review of [Pickens's]
conviction." n86 The court quickly disposed of Pickens's due process
claim by invoking Dumschat and stating that "the [Arkansas clemency]
statute [did] not create a protected interest in clemency" and thus,
the Due Process Clause was not triggered. The court also invoked the
"Rule of Necessity" saying that, under Amendment 6,
4 of the Arkansas Constitution, if the Governor is in the state of
Arkansas and "in full possession of his faculties" then the
Lieutenant Governor cannot make clemency decisions. n87
Following its affirmation of the district court in Pickens, n88 the Eighth
Circuit again addressed whether or not an impartial decisionmaker is
required in clemency proceedings in Otey v. Stenberg. n89 In this case,
Otey asserted that his constitutional rights under both the Due Process
Clause and the Equal Protection Clause of the Fourteenth Amendment were
violated by the presence of the Attorney General of Nebraska on the
Nebraska Board of Pardons, the body with the authority to grant or deny
clemency. n90 Again, the Eight Circuit simply invoked the Supreme Court's
decision in Dumschat and stated that "[d]ue process never attached to
the Nebraska clemency proceedings." n91 Thus, the court held that
Otey was not deprived of any constitutionally protected interest by the
Attorney General's inclusion on the Board of Pardons. n92
[*19]
Just one week before the Supreme Court issued its opinion in Woodard, the
Fourth Circuit decided Buchanan v. Gilmore. n93 Five days before his
scheduled execution, Douglas McArthur Buchanan filed an action pursuant to
42 U.S.C.
1983 against Governor James S. Gilmore, III. n94 In this action, Buchanan
alleged that "inasmuch as the Governor served as Attorney General of
Virginia in prior proceedings concerning his case, he is disqualified by a
conflict of interest from considering his clemency application." n95
Without any reasoning of its own or any explanation for its decision, the
Fourth Circuit cited Pickens v. Tucker and dismissed the action. n96 Thus,
it can only be assumed that the Fourth Circuit believed that no due
process protections apply in capital clemency proceedings. n97
The holdings in all of these cases rested on the basic premise that no due
process protections apply in clemency proceedings. This view is no longer
valid in light of the Court's decision in Woodard. The Court made clear
"that some minimal procedural safeguards apply to clemency
proceedings." n98 One of the "minimal procedural
safeguards" required by the Due Process Clause is an impartial
decision maker. n99
In Virginia the requirement of an impartial decision maker is especially
important. The current governor, James S. Gilmore, III, served previously
as Attorney General of Virginia. As Attorney General, Governor Gilmore
repre- [*20] sented the Commonwealth in opposing the appeals
and habeas petitions of many of the inmates who will be seeking clemency
in the next two years. Additionally, Gilmore served as Commonwealth's
Attorney for Henrico County from 1987 until 1993.
It may be possible for the Commonwealth to argue in rebuttal that there is
no evidence that Governor Gilmore would not decide any application for
clemency in a fair and impartial manner. Senior Judge Gibson of the Eighth
Circuit countered this argument very effectively in his dissent in Otey v.
Stenberg:
The attorney general, having successfully obtained affirmance of Otey's
death sentence in the Nebraska Supreme Court, and successfully represented
the State in Otey's habeas case, can hardly be expected to oppose the
execution of this sentence. As prosecutor, the attorney general determined
that it served the public welfare to seek the death penalty
as the appropriate punishment for Otey. It is unreasonable to assume that
the attorney general would freely consider the same sentence inappropriate
at a clemency hearing. . . . n100
Judge Gibson's analysis applies with equal force to situations such as the
one in Virginia. Based on the due process requirement of an impartial
decision maker, the Governor should be deemed unable to consider the
clemency applications of those inmates whose trials or appeals were
conducted during his term as Attorney General. The Lieutenant Governor
should make these determinations in light of the Governor's inability to
do so. n101
V. Conclusions
The Supreme Court's decision in Ohio Adult Parole Authority v. Woodard was
long overdue. For far too long, death row inmates in Virginia and
elsewhere have been denied basic procedural safeguards in their final
attempt to avoid the execution chamber. Hopefully, Woodard will force
states to adopt procedures similar to those used in Ohio - procedures that
adequately protect the rights of death row inmates.
Even if more "process" in clemency proceedings does not result
in a single additional grant of clemency, the system as a whole will
benefit. In our legal system "'justice must satisfy the appearance of
justice.'" n102 By requiring states to guaranty inmates a hearing and
an impartial decision maker in clemency proceedings, courts and
legislatures will help ensure that the appearance of justice is satisfied
and that only the worst of the worst are put to death. The Constitution
requires it and justice demands it.
FOOTNOTES:
n1 Death Penalty Information Center, "Facts About
the Death Penalty,"
<http://www.essential.org/dpic/dpic5.htm> (citing NAACP Legal
Defense Fund, Death Row USA, July 1, 1998). As of October 21, 1998, 54 men
and women have been executed in 1998 and a total of 486 have been executed
since 1976. Id.
n2 Pub.L.No.104-132, 110 Stat. 1214 (amending 28 U.S.C. Title 153).
n3 See 28 U.S.C. Title 153, as amended by the Anti- Terrorism and
Effective Death Penalty Act of 1996 (AEDPA),
Pub.L.No.104-132, 110 Stat. 1214.
n4 Stephen B. Bright, Death Penalty Moratorium: Fairness,
Integrity at Stake: Speaking Out in Favor of the ABA's Position, 13-SUM
Crim. Just. 28, 34 (1998).
n5 Id. at 35. See also Jeanne-Marie S. Raymond, The Incredible Shrinking
Writ: Habeas Corpus Under the Anti-Terrorism and Effective Death
Penalty Act of 1996, Cap. Def. J., vol. 9, no. 1, p. 52 (1996)
(discussing the changes made to the federal habeas process by AEDPA); Mary
E. Eade, The Incredible Shrinking Writ, Part II: Habeas Corpus Under the
Anti-Terrorism and Effective Death Penalty Act of 1996,
Cap. Def. J., vol. 9, no. 2, p. 55 (1997) (examining four early judicial
interpretations of various provisions of AEDPA); & Kimberly Woolley,
Constitutional Interpretations of the Anti-Terrorism Act's Habeas Corpus
Provisions, 66 Geo. Wash. L. Rev. 414 (1998) (discussing changes made by
AEDPA from a constitutional perspective).
n6 Bright, supra note 4, at 35.
n7 Currently, 38 states, the Federal Government, and the United States
Military have the death penalty with the total number of
people on death row in each jurisdiction as of July 1, 1998: Arizona
(119), Alabama (167), Arkansas (41), California (503), Connecticut (5),
Colorado (3), Delaware (17), Florida (388), Georgia (121), Idaho (21),
Indiana (44), Illinois (159), Kansas (2), Kentucky (33), Louisiana (80),
Maryland (18), Mississippi (64), Missouri (86), Montana (6), Nebraska
(11), New Hampshire (0), New Jersey (15), New Mexico (4), New York (1),
Nevada (89), North Carolina (205), Ohio (183), Oklahoma (141), Oregon
(24), Pennsylvania (220), South Carolina (70), South Dakota (2), Tennessee
(101), Texas (431), Utah (11), Virginia (44), Washington (17), Wyoming
(1), United States Government (19), & United States Military (8). Death
Penalty Information Center, "Facts About the Death
Penalty," <http://www.essential.org/dpic/ dpic5.htm>
(citing NAACP Legal Defense Fund, Death Row USA, July 1, 1998).
n8 Ala. Const., Amdt. 38, Ala. Code 15-18-100 (1995); Ariz. Const., art.
V, 5, Ariz. Rev. Stat. 31-443, 31-445 (1996), McGee v. Arizona State Board
of Pardons and Paroles, 376 P.2d 779 (Ariz. 1962) (holding that due
process requires full hearings of all clemency applications); Ark. Const.,
art. VI, 18, Ark. Code Ann. 5-4-607, 16-93-204 (1997); Cal. Const., art.
V, 8, Cal. Penal Code Ann. 4800-4807, Cal. Govt. Code Ann. 12030(a) (West
1992); Colo. Const., art. IV, 7, Colo. Rev. Stat. 16-17-101, 16-17-102
(1997); Conn. Const., art. IV, 13, Conn. Gen. Stat. 18-26 (1997); Del.
Const., art. VII, 1, Del. Code Ann., Tit. 29, 2103 (1997); Fla. Const.,
art. IV, 8, Fla. Stat. 940.01 (1997), Fla. Admin. Code Ann. r. T. 27, App.
(1997); Ga. Const., art. IV, 2, P 2, Ga. Code Ann. 42-9-20, 42-9-42
(1997); Idaho Const., art. IV, 7, Idaho Code 20-240 (1997); Ill. Const.,
art. V, 12, 730 Ill. Comp. Stat. 5/3-3-13 (1997); Ind. Const., art. V, 17,
Ind. Code 11-9-2-1 to 11-9-2-4, 35-38-6-8 (1993); Kan. Const., art. I, 7,
Kan. Stat. Ann. 22-3701 (1995); Ky. Const., 77; La. Const., art. IV, 5(E),
La. Rev. Stat. Ann. 15:572 (West 1992), La. Admin. Code tit 22, 101 to
113; Md. Const., art. II, 20, Md. Code Ann., art. 27, 77 (1996), and art.
41, 4-513 (1997); Miss. Const., art. V, 124, Miss. Code Ann. 47-5-115
(1981); Mo. Const., art. IV, 7, Mo. Rev. Stat. 217.220, 217.800, 552.070
(1994); Mont. Const., art. VI, 12, Mont. Code Ann. 46-23-301 to 46-23-316
(1994); Neb. Const., art. IV, 13, Neb. Rev. Stat. 83-1, 127 to 83-1, 132
(1994); Nev. Const., art. V, 13, Nev. Rev. Stat. 213.080 (1995), Nev.
Admin. Code ch. 213, 213.010 to 213.210 (1998); N.H. Const., pt. 2, art.
52, N.H. Rev. Stat. Ann. 4:23 (1988); N.J. Const., art. V, 2, P 1, N.J.
Stat. Ann. 2A:167-4, 2A:167-12 (West 1985); N.M. Const., art. V, 6, N.M.
Stat. Ann. 31-21-17 (1994); N.Y. Const., art. IV, 4, N.Y. Exec. Law 15 to
19 (McKinney 1993); N.C. Const., art. III, 5(6), N.C. Gen. Stat. 147-23 to
147-25 (1993); Ohio Const., art. III, 11, Ohio Rev. Code Ann. 2967.01 to
2967.12 (1996); Okla. Const., art. VI, 10, Okla. Stat., Tit. 21, 701.11a
(Supp. 1998); Ore. Const., art. V, 14, Ore. Rev. Stat. 144.640 to 144.670
(1991); Pa. Const., art. IV, 9, Pa. Stat. Ann., Tit. 61, 2130 (Purdon
Supp.1992); S.C. Const., art. IV, 14, S.C. Code Ann. 24-21-910 to
24-21-1000 (1977 and Supp. 1997); S.D. Const., art. IV, 3, S.D. Codified
Laws 23A-27A-20 to 23A-27A-21, 24-14-1 to 24-14-7 (1988); Tenn. Const.,
art. III, 6, Tenn. Code Ann. 40-27-101 to 40-27-109 (1997), Tenn. Comp. R.
& Regs. 1100- 1-1-.15 (1995); Tex. Const., art. IV, 11, Tex. Crim. P.
Code Ann., art. 48.01 (Supp. 1997), 37 Tex. Admin. Code 143.57 to 143.59
(West 1998); Utah Const., art. VII, 12, Utah Code Ann. 77-27-5.5
(Supp.1992), Utah Admin. Code R671-312-1 to R671-312-3 (1998); Va. Const.,
art. V, 12, Va. Code Ann. 53.1-229 to 53.1-231 (1994); Wash. Const., art.
III, 9, Wash. Rev. Code 10.01.120 (1994); Wyo. Const., art. IV, 5, Wyo.
Stat. 7-13-801 (1995).
n9 This group of states includes Arizona, Arkansas, Colorado, Florida,
Georgia, Indiana, Kansas, Missouri, Montana, New Hampshire, New York,
Ohio, and Oklahoma. It is especially interesting that both Florida and
Georgia require mandatory investigations by their respective clemency
boards before the application is considered.
n10 This group includes Arizona, Delaware, Idaho, Illinois, Indiana,
Louisiana, Nevada, Ohio, Pennsylvania, South Dakota and Utah. The type of
hearing that the inmate is entitled to differs from state to state. For
example, Pennsylvania and Delaware require full public hearings. Pa.
Const., art. IV, 9, Pa. Stat. Ann., Tit. 61, 2130 (Purdon Supp.1992);
& Del. Const., art. VII, 1, Del. Code Ann., Tit. 29, 2103 (1997).
n11 Arizona, Indiana and Ohio require both a hearing and an investigation.
Arizona, which requires both an investigation and a full adversarial
hearing, provides inmates with the greatest degree of procedural
protection. See Ariz. Rev. Stat. 31-443, 31-445 (1996) & McGee v.
Arizona State Board of Pardons and Paroles, 376 P.2d 779 (Ariz. 1962)
(holding that due process requires full hearings of all clemency
applications). The Arizona Supreme Court was the first court to recognize
that the Due Process Clause applies in clemency proceedings.
n12 Texas, Nebraska, and Wyoming require that the board or the governor
"consider" the application. Wyoming also requires that the
Governor give notice to the district attorney in the county where the
inmate was convicted.
n13 Maryland requires that the board "review" the application
for clemency.
n14 Texas, Virginia and Florida are the leaders in the number of
executions per year.
n15 The trio of cases that declared the death penalty
unconstitutional in 1972 were from Georgia and Texas. See Furman v.
Georgia, Jackson v. Georgia, & Branch v. Texas, 408 U.S. 238, 92 S.Ct.
2726 (1972). Conversely, three of the four decisions that essentially
brought back the death penalty in 1976 were from these
three states. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976);
Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950 (1976); & Proffitt v.
Florida, 428 U.S. 242, 96 S.Ct. 2960 (1976). Additionally, in the last
three years, the United States Supreme Court's capital jurisprudence has
focused in very large part on Virginia. See Buchanan v. Angelone, 118
S.Ct. 757 (1998); O'Dell v. Netherland, 117 S.Ct. 1969 (1997); Gray v.
Netherland, 116 S.Ct. 2074 (1996); & Tuggle v. Netherland, 116 S.Ct.
283 (1995). For the October 1998 term, the Supreme Court has granted
certiorari in two Virginia cases. See Strickler v. Pruett, Nos. 97-29,
97-30, 1998 WL 340420 (4th Cir.) (unpublished disposition), cert. granted
sub nom, Strickler v. Greene, 119 S.Ct. 40 (1998); & Lilly v.
Commonwealth, 499 S.E.2d 522 (Va.), cert. granted sub nom, Lilly v.
Virginia, No. 98-5881, 1998 WL 596783 (U.S. Nov. 9, 1998).
n16 428 U.S. 262, 96 S.Ct. 2950 (1976). Virginia's "future
dangerousness" aggravator reads as follows: "a sentence of death
shall not be imposed unless the court or jury shall (1) . . . find [beyond
a reasonable doubt] that there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
serious threat to society . . . ." Va. Code 19.2-264.2 (1997). The
Court in Jurek approved one of Texas's aggravating factors that read as
follows: "whether [the evidence established beyond a reasonable doubt
that] there is a probability that the defendant would commit criminal acts
of violence that would constitute a continuing threat to society."
Jurek v. Texas, 428 U.S. 262, 269, 96 S.Ct. 2950, 2955 (1976) (quoting
Tex. Crim. P. Code art. 37.071(b)(2) (Supp. 1975-1976)).
n17 428 U.S. 153, 96 S.Ct. 2909 (1976). Virginia's "vileness"
aggravator reads as follows: "a sentence of death shall not be
imposed unless the court or jury shall (1) . . . find [beyond a reasonable
doubt] . . . that his conduct in committing the offense for which he
stands charged was outrageously or wantonly vile, horrible or inhuman in
that it involved torture, depravity of mind or an aggravated battery to
the victim . . . ." Va. Code 19.2-264.2 (1997). The Court in Gregg
approved one of Georgia's aggravating factors that read as follows:
"The offense . . . was outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of mind, or an aggravated
battery to the victim." Gregg v. Georgia, 428 U.S. 153, 165 n.9, 96
S.Ct. 2909, 2921 n.9 (1976) (quoting Ga. Code 27-2534.1(b)(7) (Supp.
1975)).
n18 Fla. Admin. Code Ann. r. T. 27, App. r. 15 (1997) (Rules of Executive
Clemency, Rule 15).
n19 Id.
n20 Id.
n21 Id.
n22 Id.
n23 Ga. Code 42-9-20 & 42-9-42 (1997), Ga. Comp. R. & Regs.
475.3-.10(2)(b) (1998); & Tex. Crim. P. Code Ann., art. 48.01 (Supp.
1997), 37 Tex. Admin. Code 143.43 to 143.59 (West 1998).
n24 These states are Alabama, Kentucky, Mississippi, New Jersey, New
Mexico, North Carolina, Oregon, South Carolina, Tennessee, Virginia, and
Washington.
n25 In Virginia, the Virginia Parole Board may investigate an application
for clemency either at the Governor's request or of its own accord if
"it believes action on the part of the Governor is in the best
interest of the Commonwealth." Va. Code 53.1-231 (1998). Oregon
allows its parole board to send information about the application to the
Governor if it so desires. Ore. Rev. Stat. 144.640 to 144.670 (1991).
n26 Herrera v. Collins, 506 U.S. 390, 411-12, 113 S.Ct. 853, 866 (1993)
(footnotes omitted).
n27 452 U.S. 458, 101 S.Ct. 2460 (1981).
n28 The "Due Process Clause" of the Fourteenth Amendment
provides that "[n]o state shall deprive any person of life, liberty,
or property, without due process of law." U.S. Const. amend. XIV, 1.
n29 Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct.
2460, 2465 (1981).
n30 Dumschat, 452 U.S. at 464, 101 S.Ct. at 2464.
n31 Id. at 465, 101 S.Ct. at 2465.
n32 Dumschat dealt specifically with an inmate who was serving a sentence
of life imprisonment. Mr. Dumschat was seeking to have his life sentence
commuted by reducing the minimum sentence he was required to serve prior
to becoming eligible for parole. The Connecticut Board of Pardons
repeatedly turned down his applications for commutation without
explanation. Mr. Dumschat argued that the Board's failure to give him a
written explanation for its actions violated his rights under the Due
Process Clause of the Fourteenth Amendment. There was evidence that the
Board commuted the sentences of at least 75% of the "lifers"
that applied for commutation.
n33 See Otey v. Stenberg, 34 F.3d 635 (8th Cir. 1994) (holding that, based
on Dumschat, Due Process Clause does not apply to capital clemency
proceedings under Nebraska clemency scheme because the inmate lacked a
constitutionally protected interest); Joubert v. Nebraska Board of
Pardons, 87 F.3d 966 (8th Cir. 1996) (same); In re Sapp, 118 F.3d 460 (6th
Cir. 1997) (holding that Due Process Clause does not apply to capital
clemency proceedings under Kentucky clemency scheme because the inmate
lacked a constitutionally protected interest); Bundy v. Dugger, 850 F.2d
1402 (11th Cir. 1988) (holding that Due Process Clause does not apply to
capital clemency proceedings under Florida clemency scheme because the
inmate lacked a constitutionally protected interest); & Pickens v.
Tucker, 851 F. Supp. 363 (E.D. Ark.), aff'd, 23 F.3d 1477 (8th Cir. 1994)
(holding that Due Process Clause does not apply to capital clemency
proceedings under Arkansas clemency scheme because the inmate lacked a
constitutionally protected interest). But see Woratzeck v. Arizona Board
of Executive Clemency, 117 F.3d 400 (9th Cir. 1997)
(holding that some minimal due process standards should apply in capital
clemency proceedings based on the inmate's interest in "life").
n34 118 S.Ct. 1244 (1998).
n35 For a summary of the facts and procedural history of Woodard, see Case
Note on Ohio Adult Parole Authority v. Woodard, Cap. Def. J., vol. 10, no.
2, p. 10 (1998).
n36 Justice O'Connor wrote an opinion on the due process issue in which
Justices Breyer, Ginsburg, and Souter joined. Justice Stevens wrote a
separate opinion on the due process issue. Therefore, Justices O'Connor,
Breyer, Souter, Ginsberg, and Stevens make-up the majority of the Court on
the due process issue. The Chief Justice's opinion on the due process
issue was joined only by Justice Scalia, Justice Kennedy, and Justice
Thomas. It does not constitute the opinion of the Court.
n37 All members of the Court joined Part III of the Chief Justice's
opinion which held that Ohio's procedure of offering an inmate an informal
interview without his counsel present prior to the clemency hearing did
not violate the inmate's Fifth Amendment rights.
n38 Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244, 1250 (1998)
(opinion of Rehnquist, C.J.).
n39 Woodard, 118 S.Ct. at 1247 (opinion of Rehnquist, C.J.).
n40 Id. at 1253-1254 (O'Connor, J., concurring in part & concurring in
the judgment). Justice O'Connor concluded that Ohio's clemency procedures,
which require a clemency investigation by the State and guaranty the
inmate notice and an opportunity to be heard, were sufficient to meet the
"minimal" requirements of Due Process. Id. at 1254 (O'Connor,
J., concurring in part & concurring in the judgment).
n41 Id. at 1254 (Stevens, J., concurring in part & dissenting in
part). Justice Stevens concluded that the case should be remanded to the
district court to consider whether Ohio's procedures meet the minimum
standards of Due Process.
n42 Id. at 1253 (O'Connor, J., concurring in part & concurring in the
judgment). See also Woodard, 118 S.Ct. at 1255 (Stevens, J., concurring in
part & dissenting in part).
n43 Id. at 1254 (O'Connor, J., concurring in part & concurring in the
judgment). See also id. at 1254-55 (Stevens, J., concurring in part &
dissenting in part).
n44 See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976); Jurek v.
Texas, 428 U.S. 262, 96 S.Ct. 2950 (1976); & Proffitt v. Florida, 428
U.S. 242, 96 S.Ct. 2960 (1976).
n45 Over the years, several commentators have suggested re-recognition of
the "life" interest. See Coleen E. Klasmeier, Note, Towards a
New Understanding of Capital Clemency and Procedural Due Process, 75 B.U.
L. Rev. 1507 (1995); & Daniel T. Kobil, Due Process in Death
Penalty Commutations: Life, Liberty, and the Pursuit of Clemency,
27 U. Rich. L. Rev. 201 (1993).
n46 See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101
S.Ct. 2460, 2465 (1981) (discussing "liberty" interest of an
inmate serving a sentence of life imprisonment).
n47 See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970) (discussing
the applicability of the Due Process Clause in welfare benefit termination
proceedings based on the recipient's "property" interest in the
benefits); & Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976)
(discussing the applicability of the Due Process Clause in social security
benefit termination proceedings based on the recipient's
"property" interest in the benefits).
n48 Woodard v. Ohio Adult Parole Authority, No. 95- 4099, 1998 WL 279363
(6th Cir. May 20, 1998) (on remand from Ohio Adult Parole Authority v.
Woodard, 118 S.Ct. 1244 (1998)).
n49 Woodard, 118 S.Ct. at 1254 (O'Connor, J., concurring in part &
concurring in the judgment). See also Id. at 1255 (Stevens, J., concurring
in part & dissenting in part).
n50 The Court also left another important question unanswered in Woodard:
What is the appropriate standard of judicial review of the process
afforded inmates in clemency proceedings? To date only one court, the
Ninth Circuit, has discussed this issue. See Woratzeck v. Arizona Board of
Executive Clemency, 117 F.3d 400 (9th Cir. 1997). As a
preliminary matter in Woratzeck, the Ninth Circuit determined that minimal
due process protections apply in clemency proceedings. Woratzeck, 117 F.3d
at 404 (citing favorably Woodard v. Ohio Adult Parole Authority, 107 F.3d
1178 (6th Cir. 1997), rev'd, 118 S.Ct. 1244 (1998)). The court of appeals
then turned to the question of whether the clemency proceeding at issue
violated procedural due process. In its discussion of this issue, the
court stated that "a procedural due process violation exists only if
the Board's procedures 'shock the conscience.'" Id. Similarly, the
dissenting judge in Otey v. Stenberg also advocated a "shocks the
conscience" standard of review for clemency procedures. Otey v.
Stenberg, 34 F.3d 635, 640 (8th Cir. 1994) (Gibson, J., dissenting)
(quoting Rochin v. California, 342 U.S. 165, 72 S.Ct. 205 (1952), and
reasoning that substantive due process applied to clemency proceedings).
Utilization of this standard for reviewing clemency procedures is
appropriate under the Supreme Court's decision in Woodard. This standard
strikes the appropriate balance between preservation of the executive
power to grant or deny clemency and the protection of the inmate's
constitutional right to due process of law in clemency proceedings.
Obviously, the "shocks the conscience" standard, as articulated
in Woratzeck, presupposes that some process is being afforded. A total
lack of process would surely "shock the conscience." This is
precisely the problem with the clemency schemes in the eleven states,
including Virginia, that guaranty no process w-25 and accompanying text.
Due to the fact that these states offer absolutely no process, their
clemency schemes undoubtedly "shock the conscience."
n51 Woodard, 118 S.Ct. at 1255 (Stevens, J., concurring in part &
dissenting in part).
n52 Ohio Rev. Code 2967.07 (1998).
n53 Woodard, 118 S.Ct. at 1254 (O'Connor J., concurring in part &
concurring in the judgment).
n54 Id. (O'Connor J., concurring in part & concurring in the
judgment). At this voluntary interview, the inmate is not entitled to have
his attorney present. The Court unanimously held that this arrangement did
not violate the inmate's Fifth Amendment right to remain silent. Id. at
1252-1253 (opinion of Rehnquist, C.J.).
n55 Woodard, 118 S.Ct. at 1254 (O'Connor, J., concurring in part &
concurring in the judgment) (emphasis added).
n56 397 U.S. 254, 90 S.Ct. 1011 (1970).
n57 424 U.S. 319, 96 S.Ct. 893 (1976).
n58 Goldberg v. Kelly, 397 U.S. 254, 260, 90 S.Ct. 1011, 1016 (1970).
n59 Goldberg, 397 U.S. at 267, 90 S.Ct. at 1020. The term used by Justice
Brennan in Goldberg, "minimal procedural safeguards," is the
exact same term employed by Justice O'Connor in Woodard to describe what
due process requires in clemency proceedings. See Woodard, 118 S.Ct. at
1254 (O'Connor, J., concurring in part & concurring in the judgment).
n60 Goldberg, 397 U.S. at 267, 90 S.Ct. at 1020 (quoting Grannis v.
Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783 (1914)).
n61 Id. at 271, 90 S.Ct. at 1022 (citing In re Murchison, 349 U.S. 133, 75
S.Ct. 623 (1955) & Wong Yang Sung v. McGrath, 339 U.S. 33, 45-46, 70
S.Ct. 445, 451-452 (1950)).
n62 Mathews v. Eldridge, 424 U.S. 319, 325 n.4 and 348- 349, 96 S.Ct. 893,
898 n.4 and 909 (1976) (quoting Goldberg, 397 U.S. at 266-71, 90 S.Ct. at
1019-22, stating that due process required an "impartial
decisionmaker," and stating that the "essence of due process is
the requirement that 'a person in jeopardy of serious loss [be given]
notice of the case against him and opportunity to meet it.'" (quoting
Joint Anti-Facist Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646
(1951) (Frankfurter, J., concurring)). In Mathews, the Court also
established a three-part balancing test for determining whether additional
or substitute procedural safeguards are required in a given situation. The
three factors to consider are as follows: (1) "The private interest
that will be affected by the official action;" (2) "the risk of
an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural
safeguards;" and (3) "the Government's interest, including the
function involved and the fiscal and administrative burdens that the
additional or substantive procedural requirement would entail." Id.
at 335, 96 S.Ct. at 903. Based upon the Supreme Court's decision in
Woodard, it is not necessary to conduct a Mathews balancing to determine
what process is due. The Court held that the Due Process Clause applies to
clemency proceedings and approved the Ohio clemency scheme as satisfying
due process requirements. In so doing, the Court arguably established
Ohio's procedures as the base-line model for clemency procedures and did
so without any consideration of a cost-benefit analysis such as that in
Mathews. Even if a Mathews balancing were required, however, the scales
would tip in favor of more process rather than less. First, the private
interest affected, the deprivation of the inmate's life, is
extraordinarily important and substantial. Second, in light of the need
for "individualized decisions in capital cases," there is a risk
that, without proper clemency procedures, inmates who are either factually
not guilty, or at least not guilty of the death penalty,
will be executed. See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality
opinion) ("Given that the imposition of death by public authority is
so profoundly different from all other penalties, we cannot avoid the
conclusion that an individualized decision is essential in capital
cases."). See also Woodson v. North Carolina, 428 U.S. 280, 305, 96
S.Ct. 2978, 2991 (1976) ("This conclusion rests squarely on the
predicate that the penalty of death is qualitatively different from a
sentence of imprisonment, however long. Death, in its finality, differs
more from life imprisonment than a 100-year prison term differs from one
of only a year or two. Because of that qualitative difference, there is a
corresponding difference in the need for reliability in the determination
that death is the appropriate punishment in a specific case.") Cf.
Herrera v. Collins, 506 U.S. 390, 411-12, 113 S.Ct. 853, 866 (1993)
(describing executive clemency as the "fail
safe" of the capital punishment process which is used to hear claims
of, among other things, actual innocence after judicial avenues have been
exhausted). Further, requiring some "procedure" in clemency
proceedings, be it additional procedure or substitute procedure, would
have value. It would help ensure, for one final time, that the inmate
actually deserves to die at the hands of the state. Finally, the state's
interest in preserving state fiscal and administrative resources is
insufficient to overcome the inmate's substantial private interest in
continued life. See Goldberg, 397 U.S. at 265-66, 90 S.Ct. at 1019-20
(holding that state's interest in preserving fiscal and administrative
resources is insufficient to overcome the private interest in continuing
to receive welfare benefits [a substantially lesser private interest than
the interest in life itself]). Most states will only have to conduct
clemency proceedings a few times a year. In 1997, for example there were
74 executions in the 40 jurisdictions with the death penalty,
an average of 1.85 executions per jurisdiction. In the vast majority of
jurisdictions, the fiscal and administrative burdens, if any, will be
fairly slight. Thus, the Mathews balancing, even if it were necessary,
tips in favor of additional procedural safeguards in clemency proceedings.
n63 Goldberg, 397 U.S. at 267, 90 S.Ct. at 1020 (quoting Grannis v.
Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783 (1914)) (emphasis added). See
also Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975) (holding that
students facing temporary suspension from public school were entitled to
protection under the Due Process Clause and that due process required, in
connection with suspensions of up to ten days, that such a student be
given notice of charges and an opportunity to present his version to
authorities, face-to-face, preferably prior to removal from school).
n64 Goldberg, 397 U.S. at 267, 90 S.Ct. at 1020 (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). The Court's use of the word
"hearing" indicates that some sort of face-to-face meeting is
required. Simply being allowed to submit the application for clemency is
wholly insufficient to satisfy the constitutional requirement of an
"opportunity to be heard."
n65 Id. at 268-69, 90 S.Ct. at 1021.
n66 Id. at 269, 90 S.Ct. at 1021.
n67 Id.
n68 Goldberg, 397 U.S. at 269, 90 S.Ct. at 1021.
n69 Id.
n70 Id. at 270, 90 S.Ct. at 1022.
n71 Id. at 267, 90 S.Ct. at 1020.
n72 Id. at 269, 90 S.Ct. at 1021.
n73 See supra notes 52-55 and accompanying text.
n74 Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244, 1254 (1998)
(O'Connor, J., concurring in part & concurring in the judgment)
(emphasis added).
n75 See Va. Code 53.1-231 (1998). In Virginia, the Virginia Parole Board
may investigate an application for clemency either at the Governor's
request or of its own accord if "it believes action on the part of
the Governor is in the best interest of the Commonwealth." However,
the Governor may not delegate the actual clemency decision to the Virginia
Parole Board.
n76 Goldberg, 397 U.S. at 271, 90 S.Ct. at 1022 (citing In re Murchison,
349 U.S. 133, 75 S.Ct. 623 (1955) & Wong Yang Sung v. McGrath, 339
U.S. 33, 45-46, 70 S.Ct. 445, 451-452 (1950)); & Mathews v. Eldridge,
424 U.S. 319, 325 n.4, 96 S.Ct. 893, 898 n.4 (1976) (quoting Goldberg, 397
U.S. at 266-71, 90 S.Ct. at 1019-22, and stating that due process required
an "impartial decisionmaker").
n77 408 U.S. 471 (1972).
n78 Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972).
n79 In re Murchison, 349 U.S. 133, 136 (1955) (holding that in a contempt
proceeding arising out of testimony before a "one-man grand
jury," the judge who "served as the 'one-man grand jury' out of
which the contempt charges arose" could not, consistent with
"the due process requirement of an impartial tribunal," sit as
the trial judge in the contempt trial).
n80 349 U.S. 133 (1955).
n81 In re Murchison, 349 U.S. at 136.
n82 Id. (citing Offutt v. United States, 348 U.S. 11, 14 (1954)) (emphasis
added). The Court also stated that "'[e]very procedure which would
offer a possible temptation to the average man as a judge [ ] not to hold
the balance nice, clear, and true between the State and the accused denies
the latter due process of law.'" Id. (citing Tumey v Ohio, 273 U.S.
510, 532 (1927)).
n83 See Buchanan v. Gilmore, 139 F.3d 982 (4th Cir. 1998) (holding that,
in light of the fact that the Due Process Clause does not apply to
clemency proceedings, inmate was not deprived of any constitutionally
protected right by the fact that the Governor of Virginia, the person with
the ultimate power to grant or deny clemency, served as Attorney General
of Virginia during the pendency of most of the inmate's appeals); Otey v.
Stenberg, 34 F.3d 635 (8th Cir. 1994) (holding that in light of the fact
that the Due Process Clause does not apply to clemency proceedings, inmate
was not deprived of any constitutionally protected right by the fact that
the acting Attorney General of Nebraska, who represented the state in
majority of the inmate's appeals, is one of three members of the Nebraska
Board of Pardons, the body with the ultimate power to grant or deny
clemency); Pickens v. Tucker, 851 F. Supp. 363 (E.D. Ark.), aff'd, 23 F.3d
1477 (8th Cir. 1994) (holding that, in light of the fact that the Due
Process Clause does not apply to clemency proceedings, inmate was not
deprived of any constitutionally protected right by the fact that the
Governor of Arkansas, the person with the ultimate power to grant or deny
clemency, served as Attorney General of Arkansas during the pendency of
most of the inmate's appeals).
n84 See supra notes 29-33 and accompanying text.
n85 851 F. Supp. 363 (E.D. Ark.), aff'd, 23 F.3d 1477 (8th Cir. 1994).
n86 Pickens v. Tucker, 851 F. Supp. 363, 364 (E.D. Ark. 1994). Under
Arkansas law, "the sole pardoning power is vested in the Governor
under Article 6, 18, of the Arkansas Constitution." Pickens, 851 F.
Supp. at 365. Arkansas law also requires the Post Prison Transfer Board to
investigate every application for clemency. Ark. Code 16-93-204 (1997).
n87 Pickens, 851 F. Supp. at 365-66.
n88 A panel of the United States Court of Appeals for the Eighth Circuit
reversed the judgment of the district court in Pickens and remanded for a
determination of Governor Tucker's ability to be impartial. Pickens v.
Tucker, No. 94-2103EA, 1994 WL 248207 (8th Cir. May 10, 1994). The Eighth
Circuit, however, sitting en banc reversed the panel's decision and
affirmed the district court.
n89 34 F.3d 635 (8th Cir. 1994).
n90 Otey v. Stenberg, 34 F.3d 635, 637 (8th Cir. 1994). Under Nebraska
law, the clemency power is vested in the Nebraska Board of Pardons. The
Board has three members: the Governor, the Secretary of State and the
Attorney General. Neb. Const. art. IV, 13. The clemency procedures used in
Nebraska merely require "consideration" of the application by
the board. There is no right to a hearing or to any personal appearance by
the inmate. Otey, 34 F.3d at 638.
n91 Otey, 34 F.3d at 637. The court of appeals rejected Otey's equal
protection claim as well. Its discussion of this issue is beyond the scope
of this paper. Suffice it to say, however, that there may be a viable
equal protection claim involved in future cases on this issue. The
dissenting judge in Pickens framed the equal protection issue as follows:
"The petitioner is asserting that he does not, as a practical matter,
have the same access to a state-created process as people with respect to
whom the governor has no bias." Pickens v. Tucker, 23 F.3d 1477, 1478
(8th Cir. 1994) (en banc) (Arnold, J., dissenting). In Woodard, Justice
Stevens also acknowledged that an Equal Protection claim could exist in
some situations. Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244,
1255 (1998) (Stevens, J., concurring in part & dissenting in part).
n92 Otey, 34 F.3d at 637. Thus, the Eight Circuit rejected Otey's
procedural due process argument. It also went on to reject Otey's
substantive due process argument as well.
n93 139 F.3d 982 (4th Cir. 1998). See also Case Note on Buchanan v.
Gilmore, 11 Cap. Def. J. 73 (1998).
n94 Buchanan v. Gilmore, 139 F.3d 982, 983 (4th Cir. 1998).
n95 Buchanan, 139 F.3d at 983.
n96 Id. at 984.
n97 The Fourth Circuit apparently cited Pickens for the proposition that
the "Rule of Necessity" applies when the clemency authority is
vested solely in the Governor. Presumably, the court concluded that
Governor Gilmore was not "unable to discharge the power[ ] and dut[y]
of his office" in considering Buchanan's clemency application because
no due process protections attach to clemency proceedings under Dumschat.
Va. Const. art. 5, 16. This conclusion is not accurate after the Supreme
Court's decision in Woodard. Now that the Court has stated that the Due
Process Clause does apply, an impartial decision maker is required. Thus,
Governor Gilmore would be "unable to discharge the power[ ] and
dut[y] of his office" in clemency proceedings and the Lieutenant
Governor should consider clemency applications pursuant to Article V,
section 16 of the Constitution of Virginia.
n98 Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244, 1254 (1998)
(O'Connor, J., concurring in part & concurring in the judgment). See
also Woodard, 118 S.Ct. at 1255 (Stevens, J., concurring in part &
dissenting in part).
n99 See Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022 (1970)
(stating that under the Due Process Clause, "an impartial decision
maker is essential"). The judge who dissented from the panel's
decision in Pickens admitted as much when he stated that if procedural due
process applied to clemency proceedings, then "Mathews v. Eldridge
sets forth procedural due process requirements [which] include: 'an
impartial decisionmaker.'" Pickens v. Tucker, No. 94-2103EA, 1994 WL
248207 (8th Cir. May 10, 1994) (Beam, J., dissenting) (citation omitted).
See also Pickens v. Tucker, 23 F.3d 1477, 1478 (8th Cir. 1994) (en banc)
(Arnold, J., dissenting) (stating that "an impartial decision-maker
is a fundamental requirement of due process and citing Morrissey v.
Brewer, 408 U.S. 471 (1972)); & Otey v. Stenberg, 34 F.3d 635, 640-42
(8th Cir. 1994) (Gibson, S.J., dissenting) (stating that Attorney
General's presence on Board of Pardons renders the clemency proceeding
fundamentally unfair).
n100 Otey v. Stenberg, 34 F.3d 635, 640 (8th Cir. 1994) (Gibson, S.J.,
dissenting).
n101 Va. Const art V, 16.
n102 In re Murchison, 349 U.S. 133, 136 (1955) (citing Offutt v. United
States, 348 U.S. 11, 14 (1954)) (emphasis added).
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