This week, whilst on sabbatical, I co-taught a criminal justice communications college class in Phoenix, Arizona with a lawyer from the Arizona Justice Project where I am a Fellow. The Project considers claims of ‘manifest injustice’ and ‘actual innocence’ by Arizona inmates, and is one of over sixty such projects across the world. The topic of our class was “communicating clemency applications.” The term ‘clemency’ covers a variety of executive mechanisms an executive can use to relieve offenders, including pardons, commutation of sentences, reprieves and the remission of fines and forfeitures. Through these mechanisms, executives (and/or administrative bodies) can, inter alia, restore civil rights, acknowledge mitigating circumstances, correct egregious sentences, prevent deportations, and support political agendas. They can also correct the wrongful conviction of innocents. We chose this topic because, in recent years, a significant portion of the Project’s work has involved representing inmates in clemency proceedings, including some with credible innocence claims.

Our class introduced students to the history of clemency, its development in the United States and the specific clemency frameworks in place in Arizona. We then turned to how lawyers plan and compose clemency applications. We explained how lawyers must not only grapple with legal issues, such as questions surrounding actual innocence, constitutional law and administrative law, but also ‘human’ issues too, such as an inmate’s educational and work achievements whilst in prison, and/or their battles with addiction or other illness, and their support network outside of prison. This must also be done against the backdrop of the inmate’s prison disciplinary record, any assessment of their likelihood of reoffending, plans upon release and/or any unique features of their case which suggest their application should be given even more careful scrutiny. For example, in Arizona, there is a unique cohort of prisoners called “Old Code Lifers.” These people were sentenced between 1912 and August 1973 under laws that provided that inmates could only become parole-eligible if the governor commuted their sentence. Between 1912 and August 1973, governors commuted the sentences of 294 old code lifers to make them parole-eligible after they’d served, on average, 10.2 years. In 1973, the legislature changed the law to require that anyone sentenced to a life sentence serve at least 25 years before becoming parole-eligible. Unfortunately, since the 1973 change in sentencing law, those sentenced under the old code are rarely, if ever, granted clemency, despite it being the only active avenue for relief they might have. As such, if an inmate is an OCL in Arizona, it is important his clemency application underscores as such.

We shared with students how lawyers must frame all of these issues thoughtfully and accurately. For instance, if an inmate claims innocence, lawyers must be mindful about stating the inmate is remorseful. This is because an inmate may be sorry an unlawful event happened, but cannot be sorry for committing a crime they did not commit. Disciplinary infractions must be tackled head-on, and resolved and neutralized where possible and not ‘hidden’ from the decision-maker’s view. The causes of an inmate’s offending must be explored candidly as should his or her plans upon release and any support they might need.

Students asked a plethora of good questions, but many returned to the idea that an innocent inmate might be using the clemency system for relief, asking: Does clemency work for innocent people?

My answer was “not really.”  Clemency and innocence have a tension-filled relationship. In the 1993 case of Herrera v Collins (1993) 506 US 90, the United States Supreme Court (USSC) placed great confidence in the clemency function to remedy wrongful convictions. In ruling that Herrera’s claim of actual innocence (absent some other procedural violation in his case) was not a ground for federal habeas relief, the USSC held that (1) clemency was the “failsafe” of the criminal justice system; (2) the state clemency process was the proper mechanism for assessing innocence claims; and (3) clemency had been the historic remedy for preventing miscarriages of justice where the judicial process had been exhausted.

Herrera was decided just as the American Innocence Movement was gaining momentum. In 1992, the Innocence Project had been formed by Barry Scheck and Peter Neufeld and, by the end of 1993, a combination of Innocence Project and National Registry of Exoneration numbers reported that over 100 people had been exonerated, including fourteen whose innocence had been conclusively proven by post-conviction DNA evidence. However, since then, a number of disturbing cases – such as that of Cameron Todd Willingham and Troy Anthony Davies – have steadily highlighted the impotency of clemency for providing relief to innocent inmates. Despite presenting significant evidence of innocence, Willingham and Davies were refused clemency by Governors in Texas and Georgia respectively and, soon-after, executed. Moreover, concerns about such decisions have been exacerbated by the USSC’s decision in Ohio Adult Parole Authority v Woodard 523 U.S. 272 (1998), to afford only “minimal” due process protections to defendants in clemency proceedings and, contradictorily, hold that clemency proceedings are not “an integral part of the…system for finally adjudicating guilt or innocence of a defendant.” (Id.)

As such, there are many obstacles for innocent inmates to overcome when seeking relief via clemency. First, history shows that clemency has never truly been a power of legal significance but rather a power focused on political and policy-shaping efficiency, which is unfavorable to innocents. Second, current clemency procedures comprise numerous ‘roadblocks’ for innocents. These include a lack of transparency and meaningful review, high eligibility and relief thresholds, and unfavorable procedures and administrative board compositions. Third, courts are applying the Woodard standard very narrowly, meaning clemency is largely unchecked by the courts. This practice has allowed clemency frameworks with significant deficiencies to continue without judicial intervention. In light of these findings, clemency, to a large extent, is a hostile environment for innocence claims.

My answer was greeted with a mixture of interest and surprise from the students. For many it underscored the focus of the class – effective communication, causing them to question “how do we communicate this problem to inspire change?” My answer? That’s something I’m working on.

Sarah’s research about the relationship between clemency and innocence in America will be published in the California Western Law Review in November, 2014. (Sarah Lucy Cooper and Daniel Gough, The Controversy of Clemency and Innocence in America).

The following two tabs change content below.
Sarah Cooper

Sarah Cooper

Sarah is a Senior Lecturer in Law and Director of Birmingham City University's Mooting Society. She has been a Fellow at the Arizona Justice Project in the United States since 2010.