McGeorge School of Law

Capital Clemency Report

Capital Clemency Report

Professors Linda Carter and Mary-Beth Moylan completed a year-long study of clemency in capital cases. The study was undertaken at the request of the California Commission on the Fair Administration of Justice, which is a state senate-appointed committee that is charged with evaluating and making recommendations to the legislature to improve the criminal justice system in all cases in California.

The study examines clemency in capital cases throughout the years of California's use of the death penalty. The purpose of the project was to provide the Commission with as much information as possible about the procedures and reasons for granting or denying clemency in capital cases.

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. The article also outlines the highly limited legal constraints and almost nonexistent intervention by courts in the clemency process.

A discussion of the clemency process as it exists now in California is also included. This section of the article examines 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. The article then describes 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.

The article contemplates alternatives to the process in California and various modifications suggested in the academic literature and by the American Bar Association. 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.

In addition to researching documentary materials, the study included interviews with legal affairs secretaries to every governor from the current Schwarzenegger administration all the way back to the administration of Pat Brown. Among others, Judge Arthur Alarcon of the Ninth Circuit (one of Pat Brown's clemency secretaries), Ed Meese (Ronald Reagan's legal affairs secretary), and former Governors Davis and Deukmejian were interviewed. Five McGeorge law students were involved in research on the project and in the interviews.

The report and recommendations that were submitted to the Commission are available on the Commission's website.