Journal Article

Capital Clemency in the Age of Constitutional Regulation: Reversing the Unwarranted Decline

Steiker, Jordan M, Steiker, Carol S

2024

Overview

The modern era of American capital punishment-the period starting in 1976, when the Supreme Court reauthorized the use of the death penalty after invalidating all extant capital statutes in Furman v. Georgia3 in 1972-saw a stunning drop in the use of capital clemency, which had been a substantial and routine practice prior to the Court's intervention, even in states that used the death penalty the most. [...]we contend that constitutional regulation of capital punishment has not significantly diminished (much less eliminated) the important role of clemency in redressing numerous deficiencies in the American capital system. [...]perhaps more surprisingly, constitutional regulation has generated new grounds for robust reconsideration of capital sentences. Interestingly, however, scholars have not converged on an authoritative data set of nationwide clemency grants, with significant disparities in modern-era clemency counts among (for example) the NAACP Legal Defense Fund (LDF), the Bureau of Justice Statistics, and Michael Radelet and Barbara Zsembik's independent 1993 study.6 Radelet and Zsembik observe that \"there is no single source which provides statistics regarding the frequency of clemency and the names of prisoners who are awarded clemency in capital cases. Rather, the Court has engaged in an ongoing endeavor of top-down constitutional regulation of all aspects of the practice of capital punishment, including the requirements for statutory validity, the eligibility for execution of classes of offenses and offenders, the conduct of capital defense counsel, and the structure of capital trials, post-conviction procedures, end-stage litigation, and the execution process.

• Publisher: University of Texas, Austin, School of Law Publications, Inc
• Subject: Capital punishment / Clemency / Grants