The historic ‘fail safe’ of executive clemency is a failure in Florida
Fifth in a series
The two wives condemned as unfaithful to King Henry VIII could have been burned at the stake, but he had them beheaded. His daughter, Queen Elizabeth I, let some conspirators die by hanging rather than by being eviscerated and torn apart by horses, as some others had been.
The ghastly methods and even the death penalty itself are long gone from Great Britain, the source of America’s legal system, but capital punishment persists here along with what was once known as “the king’s mercy.”
We call it executive clemency: the power of governors and presidents to commute an unfair penalty or set aside an unjust conviction.
Famously in Florida, Gov. Reubin Askew in 1975 pardoned and freed Freddie Pitts and Wilbert Lee, who had been convicted of two murders in Port St. Joe. In 1954, Gov. LeRoy Collins commuted the death sentence of Willie Irvin, who had been convicted of rape. They were all Black and innocent.
“Executive clemency has provided the ‘fail safe’ in our criminal justice system,” wrote Chief Justice William Rehnquist in a 1993 Supreme Court opinion upholding the death sentence of a Texas prisoner, Leonel Herrera, who had a strong claim of actual innocence.
It was a disingenuous rationalization. As he should have known, the fail-safe was already failing conspicuously in Florida, Texas, Virginia and Oklahoma, the most active execution states. Less clemency means that more innocent people may die.
When Herrera lost his appeal at the Supreme Court, there had already been 54 Texas executions without a commutation since 1974. With the count now at 570 executions, Texas governors have spared only three people.
Florida has executed 99, with no clemencies since 1983, when Gov. Bob Graham granted the last of his six commutations to life in prison.
Graham considered four of the six no more culpable or even less so than co-defendants who were sentenced to life. Two others he thought might be innocent. Other governors have been insensitive to possible innocence or to disparities between death row inmates and co-defendants sentenced to life.
Governors Bob Martinez, Lawton Chiles, Jeb Bush, Charlie Crist and Rick Scott signed nothing but death warrants. Ron DeSantis has had two executions so far, no clemencies.
Bush was the last to even hold a public hearing on clemency for a death row inmate. Florida governors don’t have to explain why they grant or withhold clemency, what factors they consider, or whether they give any thought at all to a condemned person’s plea.
A 2006 report on Florida’s death penalty by an American Bar Association assessment team strongly criticized the absence of transparency and standards.
“Full and proper use of the clemency process is essential to guaranteeing fairness in the administration of the death penalty,” it said. “Given the ambiguities and confidentiality surrounding Florida’s clemency decision-making process and the fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida’s clemency process is adequate. … In fact, the governor can deny clemency at any time, for any reason, even without holding a public hearing.”
Chiles was open to commuting one death sentence but couldn’t get the necessary Cabinet majority to agree.
From 1925 to 1966, governors had commuted from 10% to 40% of the death sentences for murder and rape that reached their desks. (Rape is no longer a death penalty offense.)
What changed?
“The simple answer would be political pressure,” said Margaret Vandiver, an emeritus professor of criminology and criminal justice at the University of Memphis, who extensively studied the history of clemency in Florida. Beginning in the 1980s, “it became very difficult for governors to do anything that made them look weak on crime,” she said.
In a 1999 interview, Bush said the appeals courts had made clemency virtually unnecessary.
“While it’s another safeguard, it is seldom used because the process works pretty well,” he said.
He was wrong. The courts are primed by the laws, their own precedents, and in some cases, their biases to reject prisoner appeals for all sorts of technicalities, including the failure to raise an issue at the proper stage in the process. Prisoners’ claims of innocence will get nowhere at appeals courts without strong, newly discovered evidence or proof that their constitutional rights were violated.
“The courts do not always correct even the most terrible flaws because of procedural issues,” Vandiver said.
In one case, Justice Gerald Kogan complained bitterly that he was rule-bound to approve the execution of a man who almost certainly would have been spared by more recent trial procedures.
Yet Florida governors continue to sign death warrants as if the court system were infallible and human judgment is foolproof.
The courts eventually correct many wrongful convictions, but by no means all.
More than 2,700 post-conviction exonerations since 1989 debunk overconfidence. That nationwide total includes 76 from Florida, according to the National Registry of Exonerations. Thirty of the Floridians were or had been on death row.
Twenty-one of the Floridians were cleared by DNA testing that had not been available earlier. Among them was Frank Lee Smith of Broward County, who had already died of cancer on death row when DNA exonerated him.
Twelve of the Florida DNA exonerations proved that eyewitnesses had been wrong. Five exposed false accusations, and in two cases, there had been false confessions.
But DNA isn’t a fail-safe because there often isn’t any to test.
Where DNA is available, it provides a key to how easily innocent people can be convicted of crimes they didn’t commit. Nationwide, witness misidentification was by far the leading cause, exposed by 69% of the DNA exonerations. Flawed forensic testimony figured in 52%, and lying jailhouse informants in nearly one in five. In death row exonerations alone, according to the Death Penalty Information Center, official misconduct, as by police or prosecutors withholding evidence of innocence, figured in more than 80% of the cases.
A paper published in 2014 by the University of Michigan’s Samuel R. Gross and three colleagues estimated that more than 4% of death-sentenced defendants were innocent. How many actually died was impossible to say.
In his dissent in the Herrera case, Justice Harry Blackmun wrote that “the execution of a person who can show that he is innocent comes perilously close to simple murder.”