This article is an outgrowth of a report prepared at the request of the California Commission on the Fair Administration of Justice. We undertook a study of clemency in capital cases throughout the years of California’s use of the death penalty. Our goal was to provide the Commission with as much information as possible about the procedures and reasons for granting or denying clemency in capital cases. In addition to researching documentary materials, we also interviewed many individuals who have been involved in one capacity or another in capital clemency proceedings.
The article provides a brief overview of the meaning of clemency, its function, and its historical background. It then describes the present California constitutional provision on clemency and its history as well as the history of executions and commutations in California. We further outline the highly limited legal constraints and almost nonexistent intervention by courts in the clemency process.
Later in the article, we describe the clemency process as it exists now in California, examining the roles of the Governor, the Legal Affairs Secretary, the Board of Parole Hearings, the attorneys for the petitioner, and the District Attorney’s office involved in the case. This section also includes the role of other sources of information, such as from victims’ families or the petitioners’ families, the role of a hearing before the Board or the Governor, and the method of delivering a decision. This section is followed by a section describing the reasons given for denying clemency in the cases since 1992 and, to the extent it was possible to find information, the reasons for granting or denying clemency prior to 1976.
We then turn to an examination of alternatives to the process in California and various modifications suggested in the academic literature. One section of the article provides information about the clemency process in five selected states. Four of those states have a process that is significantly different from California’s in one or more respects. We next turn to an overview of critiques of and suggested changes in clemency by the American Bar Association and other commentators. The final section is a list of recommendations to modify the clemency process in California.