Crim Law and Philos (2007) 1:327–331 DOI 10.1007/s11572-007-9030-5 BOOK REVIEW

Austin Sarat, Mercy on trial: What it means to stop an execution Princeton University Press, Princeton, NJ, 2005. 325 pp. US$29.95, ISBN: 0691121400 (hbk) Samuel T. Morison

Published online: 1 February 2007 Ó Springer Science+Business Media B.V. 2007

The recent controversy occasioned by California Governor Arnold Schwarzenegger’s refusal to commute the death sentence of Stanley ‘‘Tookie’’ Williams, the cofounder of the notorious Crips street gang and convicted murderer of four people, underscores the significance of the emerging scholarly debate taking place over the normative justification for the practice of executive clemency. The discretionary authority of the chief executive to mitigate the terms of a juridical punishment is, of course, a venerable institution, with deep roots in the Anglo-American legal tradition. Indeed, the US Supreme Court has held that the practice of executive clemency serves—in theory if not always in practice—as the constitutional remedy of last resort for claims of injustice that are beyond the procedural reach of further judicial scrutiny. However difficult it is as a practical matter to reliably establish such grounds for commuting a death sentence, this use of the clemency power is not a matter of serious theoretical dispute, since there is widespread agreement in principle that the imposition of the state’s ultimate sanction, if it is to be used at all, should be administered in a scrupulously fair manner. Surprisingly perhaps, given that Williams steadfastly maintained to the end his innocence of the specific acts for which he was condemned, the argument advanced in his clemency petition to the governor did not appeal to any alleged injustice, procedural or otherwise, in the judicial process that resulted in his conviction and sentence, much less to the supposed constitutional infirmity of the death penalty as such. To the contrary, Williams’ petition rested on a straightforward appeal for mercy and forgiveness, which traditionally has served as an equally sound justification for the remission of punishment. For the Supreme Court has also repeatedly characterized the grant of clemency as an undeserved ‘‘act of grace,’’ by means of

The views expressed in this review are the author’s personal opinions and do not reflect the official position of the U.S. Department of Justice. S. T. Morison (&) U.S. Department of Justice, Washington, DC, USA e-mail: [email protected]

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which the chief executive is vested with the plenary authority to bestow legal ‘‘forgiveness’’ to the convicted person. In Williams’ case, his appeal for mercy was based on an established record of rehabilitation during nearly 25 years of incarceration, in particular his admittedly laudable efforts to promote the reduction of the gang violence in Los Angeles that he was in large measure responsible for instigating in the first place. Reasonable minds might well disagree about the adequacy of Williams’ efforts to atone for his past actions, particularly given his unrepentant attitude about the crimes of which he was convicted. In a written statement explaining the reasons for his denial of Williams’ petition, for example, Governor Schwarzenegger contended that Williams’ refusal to accept responsibility for the murders undermined the plausibility of his claim of personal redemption. But this elides an even more contentious question presented by the Williams case, namely whether a capital defendant’s post-conviction redemption, assuming we are convinced that it is genuine, is ever a sufficient justification for the commutation of a death sentence. It is the burden of Austin Sarat’s provocative new book, Mercy on Trial, to defend the legitimacy of this redemptive understanding of executive clemency, which in practice has been largely abandoned as a casualty of today’s culture wars. Given ‘‘the continuing trouble that [the merciful dispensation of] clemency poses for constitutional democracy’’ (p. 86), he writes, it ‘‘has always needed a vigorous defense in the United States’’ (p. 31). However, as the Williams case illustrates, mounting an effective defense on behalf of mercy turns out to be a daunting challenge in the current political climate, because the large majority of elected officials, like the most vocal segment of the electorate, are reflexively committed to the twin pillars of the prevailing conception of criminal justice, namely the retributive theory of punishment and its close ideological cousin, the ‘‘victims rights’’ movement. In this composite view, the merciful exercise of the clemency power is inherently disreputable for two primary reasons. The first reason is a philosophical objection grounded in the hard-edged logic of retributivism, the fruit of which has been the distinctively American preference among liberal democracies for comparatively harsher standards of punishment. For if the overriding justification of punishment is the intrinsic moral value derived from ensuring that each offender gets the full measure of his just deserts, no more and no less, then it seems analytic that the executive’s mitigation of a properly imposed sentence derogates from the rightful demands of grievance retributivism. Whether this is an adequate understanding of retributive penal theory is a separate question that goes beyond the scope of this review, but the issue is vividly presented when clemency is motivated by a (potentially maudlin) sense of sympathy for the unfortunate plight of a capital defendant, who, after all, stands convicted of an especially serious offense for which he arguably deserves to forfeit his life, morally speaking. Sarat thus argues that ‘‘clemency in capital cases is in decline as political leaders respond to forces—for instance, victim’s rights and retributivism—that are increasingly powerful in American political culture. These forces reject mercy and compassion as legitimate responses to criminals’’ (p. 28). Moreover, quite apart from the suspicion that the reduction of a just sentence is tantamount to a morally lax indulgence toward a person who does not genuinely deserve it, Sarat maintains, correctly in my view, that a more radical concern lurks beneath the widespread antipathy toward the institution of executive clemency as such. This objection is grounded in the paradox of democratic governance, if you

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will, namely the deep-seated anxiety that vesting a single decision-maker with the discretionary authority to remit punishment, unchecked by the coordinate branches of government, places the social order in jeopardy by undermining the rule of law, upon which each of us relies to secure our liberty and security. The pardon power may thus be a necessary adjunct to the criminal justice system as a ‘‘fail safe’’ device for correcting legal errors, in particular to ward off the morally disastrous ‘‘prospect that an innocent man might be executed’’ (p. 88). Nevertheless, ‘‘mercy and grace [remain] dangerous because both are in principle not governable by law,’’ but rather occupy a nebulous ‘‘borderland in which law authorizes them, but cannot subject them to the governance of rules’’ (pp. 87–88, 90). It is above all this ‘‘essentially lawless’’ quality of the merciful remission of punishment, Sarat argues, that makes it appear to constitute an unacceptable ‘‘threat to a society dedicated to the rule of law’’ (p. 69). For these reasons, when state governors have occasionally granted clemency in capital cases, they have almost invariably attempted to constrain the ‘‘potentially uncheckable power’’ of their discretion (p. 130) by couching the justification for the decision in terms of ‘‘a corrective for some deficiency in the legal process’’ that is consistent with a concern for justice (p. 155), such as, inter alia, the arbitrariness of the death penalty, its failure to act as a deterrent, the racial disparity in its imposition, or the inherent risk of erroneous convictions. Sarat documents this tendency by surveying a series of ‘‘pardon tales’’ involving grants of clemency in capital cases occurring over the past 100 years, including notable episodes of ‘‘gubernatorial activism’’ in Illinois (pp. 1–32), Oklahoma (pp. 37–48), Arkansas (pp. 48–58), New Mexico (pp. 58–66), California (pp. 147–151), and Ohio (pp. 152–157). Although the rationale relied upon by each of the governors in these instances varied widely, from a principled opposition to the death penalty to a highly individualized review of the merits each case, Sarat shows that the one unifying theme among them has been a studied avoidance of compassion toward the recipients of their largess. In this regard, he devotes most of his critical attention, appropriately enough, to a careful review of the most recent and dramatic of these episodes, Illinois Governor George Ryan’s decision in early 2003, just prior to leaving office, to commute the death sentence of each of the 167 inmates then on death row in the state to life imprisonment, essentially on the grounds that he could not rely on the fairness of the system that resulted in their original sentences. Consistent with the historical pattern noted above, Sarat points out that, in the course of an hour long speech announcing his decision, Ryan only mentioned mercy twice, and both times by quoting the words of others . . . As the halfheartedness of these invocations of mercy suggest . . . Ryan’s wholesale clemency was less an act of grace than a concession to the inadequacies of a death penalty system gone awry and to a political system unwilling or unable to redress those inadequacies. Thus while his act produced mercy for those whose sentences were reduced, it was not given in a merciful spirit . . . If responsiveness to victims provided the point of departure for his clemency, retributive principles provided its disciplining core (pp. 117–119). Sarat thus contends that while ‘‘Ryan did the right thing when he used his prerogative power to prevent state killing . . . he did it for the wrong reasons, playing to victims, embracing retributivism, trying to prove that he was tough on crime’’ (p. 144). At the same time, Sarat does not place the responsibility for this

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performance entirely on Ryan, whose rhetorical strategy was designed to be responsive to prevailing public sentiments about crime and order. In the last analysis, he concludes, ‘‘[o]nly if American society develops a fuller tolerance for humanity and its weaknesses . . . will it be possible to offer clemency without all the strained qualifications that our age forces on those granted this power. Until then capital clemency will rarely be exercised and, when exercised, will continue to be stripped of compassion’’ (p. 145). While Sarat’s astute diagnosis of the contemporary trials of mercy accurately highlights the disturbing sense of moral superiority that is endemic to American cultural attitudes toward criminal defendants, he may have rested his defense a bit prematurely. Whether the abolition of capital punishment would undermine public safety, for example, depends entirely upon the extent to which it acts as an effective deterrent against homicide, which is an empirical proposition that the available data has notoriously failed to substantiate. But if that is true, then there is certainly no good reason to believe that the remission of any particular death sentence will have a significant impact on the prevalence of violent crime, particularly when the alternative is typically life imprisonment without the possibility of parole. This conclusion is further reinforced by the fact that, as Sarat correctly notes but does not sufficiently develop (p. 158), the criminal justice system is, in any event, rife with discretionary decisions that frequently result in the imposition of less than the full measure of deserved punishment, from prosecutorial charging decisions and to jury verdicts of acquittal. The alleged risk posed to the stability of the social order by the merciful remission of punishment in individual cases is thus greatly exaggerated, which is a point I think might have been made more forcefully. Bearing this in mind, Sarat’s esoteric appeal to undertake the risks inherent in this species of forgiveness, by rejecting the scholarly attempts to articulate ‘‘moral principles to do what the law cannot do’’ (p. 114) and instead embracing the existential ‘‘mysteries’’ of compassion (p. 158), seems to allow, unnecessarily in my view, that such decisions are in some sense unconstrained by rational moral deliberation. At the very least, if I have read him correctly, Sarat’s claim about the rational status of merciful legal judgments is not likely to persuade anyone who is not already convinced that our sentencing practices are unduly harsh and that mercy is thus a risk worth taking, much less provide a compelling rationale for abandoning the death penalty altogether. Moreover, the mere fact that a particular class of decisions is committed to an agent’s discretion simply does not entail that any specific use of that discretion is an arbitrary exercise of will. It is, therefore, both a philosophical and a strategic mistake to defend the practice of executive clemency in this way. That is to say, the relevant issue is not whether the institution of executive clemency should be constrained by moral principles, but rather the proper conception of morality in terms of which it should be constrained. Rather than granting one’s intellectual opponents their choice of weapons, as it were, it seems to me that those who wish to defend the redemptive theory of the clemency power should insist that, given the reality of the human condition, the relevant moral principles governing its use are not exhausted by the retributive demands for desert, proportionality, and equality in meting out juridical punishment. If this is correct, then clemency decisions are amenable to rational moral assessment in terms of these other, equally compelling social values, such as the virtues of forgiveness and compassion. We may thus reasonably conclude that the consistent refusal to be merciful in the appropriate circumstances, when it is in one’s power to

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do so, is properly subject to moral condemnation as a form of cruelty and perhaps cowardice, as the case may be. Put another way, the responsible exercise of the clemency power is not merely a nice thing for a governor to do on occasion, perhaps as a kindly gesture during the holiday season, but is rather a moral obligation that attaches to the office of chief executive, for which he should be held to account. From this perspective, the rational force of moral principle can be deployed against the misuse of the clemency power, notwithstanding the fact that it is exempt from the putatively objective constraints of the rule of law. Though it goes perhaps without saying, it is worth remembering in this context that the ‘‘rule of law’’ is itself a moral ideal that largely depends for its efficacy upon widespread acceptance by the members of a political community, though the precise contours of its concrete application remain underdetermined. Nevertheless, it is not for that reason unintelligible as a guiding principle of political morality. In this respect, the redemptive theory of executive clemency is no different. While this approach does imply, to be sure, that there is no neat conceptual solution to the tension between justice and mercy, I should argue that engaging the debate in these terms holds out the best hope for restoring the redemptive theory of executive clemency to the intellectual respectability and cultural currency it once enjoyed. Having said that, Mercy on Trial should be required reading for anyone who thinks this is a cause worth pursuing.

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