Mercy on Trial: What it means to stop an execution

Mercy on Trial: What It Means to Stop an Execution

Volumn , Issue , 2009, Pages

  Sarat, Austin ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84884064667     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Book

References (569)

1. As a result of the Furman decision, approximately six hundred death sentences across the nation were reduced to life in prison. See Furman v. Georgia, 408 U.S. 238 (1972).
2. For a discussion of the new abolitionism, see Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001), chapter 9.
3. For a discussion of the president's emergency powers, see Bruce Ackerman, "The Emergency Constitution," 113 Yale Law Journal (2004), 1029.
4. For criticism of Ackerman's views, see David Cole, "The Priority of Morality: The Emergency Constitution's Blind Spot," 113 Yale Law Journal (2002), 1753
5. Lawrence Tribe and Patrick Gudridge, "The Anti-Emergency Constitution," 113 Yale Law Journal (2004), 1801.
6. Bruce Shapiro, "A Talk with Governor Ryan," The Nation (December 21, 2000), http://www.thenation.com/doc.mhtml%3Fi=20010108&s=shapiro.
7. Recommendation 107, ABA House of Delegates, February 3, 1997.
8. The report and recommendation both call for a permanent halt to the execution of juveniles and the mentally retarded.
9. Stephen Bright, "Counsel for the Poor: The Death Sentence Not for the Worst Crime, but for the Worst Lawyer," 103 Yale Law Journal (1994), 1835.
10. Charlotte Holdman, "Is There Any Habeas Left in This Corpus?" 27 Loyola University of Chicago Law Journal (1996), 524.
11. Report of the ABA, Submitted with Recommendation 107, 5.
12. David Baldus, George Woodworth, and Charles Pulaski, Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Boston: Northeastern University Press, 1990).
13. See Samuel Gross and Robert Mauro, Death and Discrimination: Racial Disparities in Capital Sentences (Boston: Northeastern University Press, 1989).
14. See Jesse Jackson Jr., "Why I Support the Illinois Death Penalty Moratorium Campaign," found at Congressman Jesse Jackson Jr., Web Site (April 21, 1997), http://www.jessejacksonjr.org/issues/i042197264.html
15. "Bill Would Stay Executions Pending Review," Chicago Daily Law Bulletin (April 27, 1997), p. 1.
16. Douglas Holt and Steve Mills, "Double Murder Case Unravels," Chicago Tribune (February 4, 1999), 1.
17. Among those urging such action were Illinois State Supreme Court justices Moses Harrison and Charles Freeman. See John Flynn Rooney, "Death Penalty Issue Engages All Three Branches," Chicago Daily Law Bulletin (February 10, 1999), 1.
18. See Christopher Wills, "Despite Porter Case, Death Penalty Moratorium Faces Strong Opposition," AP State and Local Wire (February 5, 1999).
19. "Doubts about Death Penalty," Chicago Tribune (February 7, 1999), 1, 8.
20. Rick Pearson and Cornelia Grunman, "A Change of Heart on Execution Cases," Chicago Tribune (February 11, 1999), 1, 27.
21. Shapiro, "A Talk with Governor Ryan."
22. See also Norman Greene et al., "Governor Ryan's Capital Punishment Moratorium and the Executioner's Confession: Views from the Governor's Mansion to Death Row," 75 St. John's Law Review (2001), 401, 409.
23. Cornelia Grunman and Rick Pearson, "Ryan Agonized, but Confident He 'Did the Right Thing,'" Chicago Tribune (March 18, 1999), 1, 20. That same month legislative efforts to establish a death penalty moratorium came to a halt when a state senate committee failed by one vote to move a resolution to the full chamber.
24. Dave McKinney, "Kokoraleis Executed Despite Late Appeals," Chicago Sun-Times (March 17, 1999), 7. Kokoraleis would be the only person executed in Illinois during Ryan's term.
25. Kate Marquess, "Judges to Look at Death Penalty," Chicago Lawyer (May, 1999), 10.
26. Shapiro, "A Talk with Governor Ryan."
27. Ken Armstrong and Steve Mills, "Part 1: Death Row Justice Derailed," Chicago Tribune (November 14, 1999), 1.
28. As Ryan put it, referring to the Armstrong and Mills series, "It is pretty startling." See Greene et al., "Governor Ryan's Capital Punishment Moratorium and the Executioner's Confession: Views from the Governor's Mansion to Death Row," 411.
29. See Steve Mills and Christi Parsons, "'The System Has Failed': Ryan Condemns Injustice, Pardons 6," Chicago Tribune (January 11, 2003), 1, 18.
30. See Aaron Chambers, "Ryan Halts All Executions in Illinois," Chicago Daily Law Bulletin (January 31, 2000), 1.
31. For a discussion of reactions, see Darryl Van Duch, "The ABA, Rome, React to Gov. Ryan's Moratorium," American Lawyer Media (February 3, 2000).
32. See Omar Sofradzija, "Peoria County State's Attorney Blasts Ryan on Death Penalty," Copley News Service (February 1, 2000). For an example of other criticism, see "Execution Moratorium Illegal, State Justice Says," Chicago Sun-Times (October 4, 2000), 2.
33. "Editorial: Reprieve for Justice," Chicago Sun-Times (February 1, 2000), 19.
34. Paul Krawzak, "Inmates Nearing Death Sway Ryan's View," State Journal-Register (Springfield, IL) (February 1, 2000), 1.
35. Ken Armstrong and Steve Mills, "Ryan: 'Until I Can Be Sure'" Chicago Tribune (February 1, 2000), 1, 4.
36. See Tim Novak, "Select Panel Won't Be Alone in Studying Death Penalty," Chicago-Sun Times (March 10, 2000), 22.
37. See Greene et al., "Governor Ryan's Capital Punishment Moratorium and the Executioner's Confession: Views from the Governor's Mansion to Death Row," 406.
38. Mark Brown, "Guts Not Real Issue in Ryan-Philip Spat," Chicago Sun-Times (April 26, 2001), 2.
39. See Nathaniel Hernandez, "Rules Changes in Death Penalty Cases Seen as a Beginning," Chicago Lawyer (March, 2001), 10.
40. Steve Mills and Christi Parsons, "Death Penalty Report Readied," Chicago Tribune (February 1, 2002), 1.
41. Michael Sneed and Dave Newbart, "Ryan Studies Death Row Cases," Chicago Sun-Times (March 3, 2002), 3.
42. See Maurice Possley and Eric Ferkenhoff, "Daley, Cops Question Death Penalty Reform Plan," Chicago Tribune (April 17, 2002), 1.
43. "Reactions to the Governor's Death Penalty Commission Report," Associated Press State and Local Wire (April 12, 2002).
44. Dave McKinney, "'Why Let Them Live?' Asks Boy Upset by Bids for Clemency," Chicago Sun-Times (August 29, 2002), 8.
45. See Mary Mitchell, "Governor Ryan Steamrolls Murder Victims' Families," Chicago Sun-Times (September 5, 2002), 14.
46. "Editorial: Blanket Amnesty Would Rob Justice," Chicago Sun-Times (September 8, 2002), 33.
47. Dan Rozek, "Ryan Sees Clemency for All or None," Chicago Sun-Times (September 7, 2002), 2.
48. John Patterson, "Clemency Hearings Open Old Wounds," Chicago Daily Herald (October 15, 2002), 1.
49. Steve Mills and Christi Parsons, "Tears Send a Message: Hearings' Emotional Impact Surprises Death Penalty Foes," Chicago Tribune (October 27, 2002), 1.
50. See Steve Mills, "Life-or-Death Debate Rages at Hearings," Chicago Tribune (October 16, 2002), 1, 14.
51. Mills and Parsons, "Tears Send a Message: Hearings' Emotional Impact Surprises Death Penalty Foes," 1.
52. Steve Neal, "Editorial: Governor Is Out of Control," Chicago Sun-Times (October 22, 2002), 27.
53. "Editorial: Ryan's Hearings Cruel and Unusual," Chicago Sun-Times (October 22, 2002), 27.
54. "Editorial: Crime, Punishment and Politics," Chicago Tribune (November 20, 2002), 26.
55. In May 2003 the legislature finally passed a reform package that, among other things, ended the execution of the mentally retarded, established a pilot program to begin police videotaping of homicide interrogations and confessions, increased the ability of the state supreme court to overturn death sentences, and gave defendants greater access to DNA testing. See "Editorial: Not a Flawless Fix, but We Can Work with It," Chicago Sun-Times (June 1, 2003), 39.
56. John Keilman, "Clemency Pleas Rile Panelists," Chicago Tribune Tribwest (October 17, 2002), 1.
57. Charles Keeshan, "Family Blasts Clemency Hearings," Chicago Daily Herald (October 18, 2002), 1.
58. Also John Keilman, "Anger over Ryan Grows," Chicago Tribune Tribwest (October 18, 2002), 1.
59. Steve Mills, "650 Lawyers Offer Ryan Case for Blanket Commutation," Chicago Tribune (November 19, 2002), 1
60. "No Blanket Clemency, Prosecutors Urge Ryan," Chicago Tribune (December 13, 2002)
61. John McCormick, "Letter Prods Ryan on Clemency: Law Teachers Urge Weighing Blanket Commutation," Chicago Tribune (December 30, 2002).
62. John Patterson, "What Will the Governor Do? On Clemency Issue Ryan's Hard to Predict," Chicago Daily Herald (October 23, 2002), 1. On other occasions Ryan said that he "probably won't" issue a blanket clemency after the hearings.
63. Gary Wisby and Carlos Sadovi, "Governor Flips, Says He'll Talk to Victims' Kin," Chicago Sun-Times (November 2, 2002), 5. At the time he announced his clemency decision Ryan acknowledged his vacillation saying about the families of murder victims, "They have a right to feel betrayed. . . . I have probably misled them." John Keilman, "Relatives of Victims Feel 'Cheated,' " Chicago Tribune (January 12, 2003).
64. Michel Foucault, The History of Sexuality, vol. 1. An Introduction. Robert Hurley, trans. (New York: Viking, 1990), 135.
65. Calvin's Case 77 E.R. 377 (Exchequer, 1608), at 398. For more on this tradition and the development of the Roman law maxim in common law, see Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2004), 45-46.
66. Michel Foucault, "Governmentality," in The Foucault Effect, Graham Burchell, Colin Gordon, and Peter Miller, eds. (Chicago: University of Chicago Press, 1991).
67. See Sylvia Ostry, "Globalization and Sovereignty," James R. Mallory Annual Lecture in Canadian Studies, McGill University (March 19, 1999), http://www.misc-iecm.mcgill.ca/publications/ostry.pdf.
68. See also Susan Strange, The Retreat of the State: The Diffusion of Power in the World Economy (New York: Cambridge University Press, 1996).
69. William Connolly, Identity/Difference (Ithaca: Cornell University Press, 1991), 24.
70. Timothy Kaufman-Osborn, From Noose to Needle: Capital Punishment and the Late Liberal State (Ann Arbor: University of Michigan Press, 2002), 208.
71. Foucault, The History of Sexuality, 88-89.
72. Nikolas Rose, Powers of Freedom (Cambridge: Cambridge University Press), 1999, 18.
73. Kaufman-Osborn, From Noose to Needle, 189.
74. Rose, Powers of Freedom, 162.
75. See, for example, Sarat, When the State Kills: Capital Punishment and the American Condition.
76. Robert Cover, "Violence and the Word," 95 Yale Law Journal (1986), 1601.
77. See also Austin Sarat, ed., Pain, Death, and the Law (Ann Arbor: University of Michigan Press, 2001).
78. For important discussions and illustrations of this prerogative, see Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France (Stanford: Stanford University Press, 1987)
79. Douglas Hay, "Property, Authority, and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Douglas Hay et al., eds. (New York: Pantheon Books, 1975).
80. See James Barnett, "The Grounds of Pardon," 17 Journal of the American Institute of Criminal Law and Criminology (1927), 490.
81. Clemency for Battered Women in Michigan: A Manual for Attorneys, Law Students and Social Workers, at http://www.umich.edu/~clemency/clemency_manual/manual_chapter02.html.
82. See Robert Weisberg, "Apology, Legislation, and Mercy," 82 North Carolina Law Review (2004), 1415, 1421.
83. William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 (Chicago: University of Chicago Press, 1979), 4:389.
84. See Baron de Charles de Secondat Montesquieu, The Spirit of the Laws [1748]. Anne M. Cohler et al., eds. and trans. (Cambridge: Cambridge University Press, 1989), bk. 6: 21.
85. Daniel Markel, "Against Mercy," 88 Minnesota Law Review (2004), 1421, 1439.
86. Also Jeffrie Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988).
87. Also Alwynne Smart, "Mercy," in The Philosophy of Punishment, ed. H. B. Acton (New York: St. Martin's Press, 1969), 212-27.
88. See Markel, "Against Mercy," and Linda Helyar Meyer, Grace and Justice, PhD dissertation, Jurisprudence and Social Policy, University of California, Berkeley, 1991.
89. For example, Claudia Card, "On Mercy," Philosophy Review 43 (1972), 182.
90. Robert Misner, "A Strategy for Mercy," 41 William and Mary Law Review (2000), 1303, 1322.
91. See Weisberg, "Apology, Legislation, and Mercy," 1416.
92. Also Stephen Garvey, "Is It Wrong to Commute Death Row? Retribution, Atonement, and Mercy," 82 North Carolina Law Review (2004), 1319.
93. I am grateful to Patricia Ewick for pointing this out and sharing this formulation.
94. See J. H. Baker, An Introduction to English Legal History (London: Butterworths: 1990), 122-28.
95. See Beau Breslin and John J. P. Howley, "Defending the Politics of Clemency," 81 Oregon Law Review (2002), 231, 239.
96. Elizabeth Rapaport, "Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women's Capital Cases," 4 Buffalo Criminal Law Review (2001), 967, 974-75.
97. Also, Abramowitz and Paget, "Executive Clemency in Capital Cases," 177.
98. John Locke, Second Treatise on Civil Government, C. B. Macpherson, ed. (Indianapolis, IN: Hackett Publishing, 1980), sections 159-60.
99. John Harrison, "Pardon as Prerogative," 13 Federal Sentencing Reporter (2000-2001), 147.
100. William Miller, "Clint Eastwood and Equity: Popular Culture's Theory of Revenge," in Law in the Domains of Culture, Austin Sarat and Thomas R. Kearns, eds. (Ann Arbor: University of Michigan Press, 1998), p. 175.
101. Blackstone, Commentaries on the Laws of England, 4:389, 390.
102. Robert Salladay, "Clemency: Slim Chance These Days," San Francisco Examiner (November 29, 1998), http://www.sfgate.com/cgi-bin/article.cgi%3Ff=/examiner/archive/1998/11/29/NEWS8622.dtl&type=printable.
103. Alan Berlow, "The Texas Clemency Memos," Atlantic Monthly (July/August 2003), http://www.theatlantic.com/issues/2003/07/berlow.htm.
104. Cited in "Clemency Becoming Rare as Executions Increase," Corrections Digest (July 8, 1987), 2.
105. See "Grant of Commutation for Michael Daniels," Indianapolis Star (January 7, 2005), http://www.indystar.com/images/graphics/2005/01/0107_kernan_statement.pdf.
106. See "California Executes First Inmate in Three Years," New York Times (January 19, 2005), http://www.nytimes.com/reuters/news/news_crimeexecutioncalifornia.html.
107. See Richard Brown, The Hanging of Ephraim Walker: A Story of Rape, Incest, and Justice in Early America (Cambridge, MA: Harvard University Press, 2003), 191.
108. See Breslin and Howley, "Defending the Politics of Clemency," 239.
109. Also, Alyson Dinsmore, "Clemency in Capital Cases: The Need to Ensure Meaningful Review," 49 UCLA Law Review (2202), 1825, 1842
110. Daniel Kobil, "Chance and the Constitution in Capital Clemency Cases," 28 Capital University Law Review (2002), 567, 572.
111. Margaret Colgate Love, "Fear of Forgiving: Rule and Discretion in the Theory and Practice of Pardoning," Federal Sentencing Reporter 13 (2000-2001), 125, 126.
112. See Jonathan Simon, Governing through Crime: The War on Crime and the Transformation of American Governance, 1960-2000 (New York: Oxford University Press, forthcoming).
113. See also Joseph E. Kennedy, "Monstrous Offenders and the Search for Solidarity through Modern Punishment," 51 Hastings Law Journal (2000), 829, 832.
114. See Simon, Governing through Crime, chapter 5.
115. This quotation is taken from Jonathan Simon's review of a proposal for this book.
116. See Herrera v. Collins, 506 U.S. (1993), 390, 412.
117. See Elkan Abramowitz and David Paget, "Executive Clemency in Capital Cases," 39 New York University Law Review (1964), 136, 138-40.
118. For a discussion of some of those controversies in England, see William Duker, "The President's Power to Pardon: A Constitutional History," 18 William and Mary Law Review (1977), 475, 476-97.
119. For a case study of controversy surrounding the granting of clemency in Ohio, see Daniel Kobil, "Do the Paperwork or Die: Clemency, Ohio Style," 52 Ohio State Law Journal (1991), 655, 671-82.
120. For a comparable study of the pardons in the Iran-Contra Affair, see James Jorgensen, "Federal Executive Clemency Power: The President's Prerogative to Escape Accountability," 27 University of Richmond Law Review (1992-93), 345. See also chapter 2 of this book.
121. An Open Letter to Governor Ryan" (December 30, 2002), http://www.law.northwestern.edu/depts/clinic/wrongful/documents/LawProfLet1.pdf.
122. From "Open letter signed by more than 650 Illinois attorneys" (November 18, 2002), http://www.law.northwestern.edu/depts/clinic/wrongful/documents/LawyerLet1.pdf.
123. Claire O'Brien, "Ryan: Life over Death: Over Protests of Victims' Families, Governor Commutes All Sentences," Southern Illinoisan (January 11, 2003), at http://www.stopcapitalpunishment.org/coverage/45.html.
124. Dominic Evans, "Amnesty Urges Bush 'Moral Stand' on Death Penalty," Reuters (January 12, 2003), at http://www.stopcapitalpunishment.org/coverage/48.html.
125. See "Illinois Governor's Blanket Pardon Spares Lives of 167 Condemned Inmates," Fox News (January 11, 2003), http://www.foxnews.com/story/0,2933,75170,00.html.
126. O'Brien, "Ryan: Life Over Death."
127. John Keilman, "Relatives of Victims Feel 'Cheated,'" Chicago Tribune (January 12, 2003), 1, 15.
128. Rick Pearson and Ray Long, "History-and Federal Prosecutors-Will Write Final Chapter in How Ryan Is Remembered," Chicago Tribune (January 13, 2003), 1, 12.
129. O'Brien, "Ryan: Life Over Death."
130. Don Babwin, "Illinois Governor Empties Death Row" (January 12, 2003), found at http://www.stopcapitalpunishment.org/coverage/56.html.
131. Robert Anthony Phillips, "Ryan Commutes All Death Sentences in Illinois," TheDeathHouse.com (January 11, 2003), http://www.thedeathhouse.com/deathhousenewfi_352.htm (link no longer active).
132. Editorial, Chicago Sun-Times (January 12, 2003), 29.
133. Sean Hamill and Kevin Lynch, "Debate Is Urged on Execution Law," Chicago Tribune (January 13, 2003)
134. See "Editorial: It Is Unconscionable that Elected Official Would Rather Restrict Clemency than Fix a System that Is Broken," Chicago Sun Times (January 29, 2003), 37.
135. Abdon Pallasch, "Madigan Joins Case against Clemency," Chicago Sun-Times (February 5, 2003), 18. A year later, the Illinois Supreme Court upheld Ryan's actions. See People ex rel. Lisa Madigan v. Snyder, 208 Ill. 2d (2004) 457.
136. Steve Whitworth, "Haine Enraged by Governor's Move," The Telegraph (Alton, IL) (January 12, 2003), at http://www.stopcapitalpunishment.org/coverage/44.html.
137. George Will, "Death Row Clemency Shows a Contempt for Democracy," Chicago Sun-Times (January 19, 2003), Editorial, 33.
138. See also John O'Sullivan, "Editorial: Clemency Is Cause to Mourn Not Cheer," Chicago Sun-Times (January 14, 2003), 23.
139. Whitworth, "Haine Enraged by Governor's Move."
140. See Patricia Goff, "Invisible Borders: Economic Liberalization and National Identity," International Studies Quarterly 44 (December 2000), 533.
141. David Jacobson, "New Frontiers: Territory, Social Spaces, and the State," Sociological Forum 12 (1997), 121, 124.
142. "The borders of a settled nation-state substantially define our sense of political identity and justify a marked ethical partiality towards our fellow nationals." Michael Kenny, "Global Civil Society: A Liberal-Republican Argument," Review of International Studies 29 (2003), 119.
143. Margaret Montoya, "Border/ed Identities: Narrative and the Social Construction of Legal and Personal Identities," in Crossing Boundaries: Traditions and Transformations in Law and Society Research, Austin Sarat, Marianne Constable, David Engel, Valerie Hans, and Susan Lawrence, eds. (Evanston: Northwestern University Press, 1998), 131.
144. For a discussion of the uncertainty and anxiety as well as possibility and opportunity found in borderlands, see Thomas W. Wilson, ed. Border Identities: Nation and State at International Borders (Cambridge: Cambridge Press, 1998).
145. See "Presidential Pardons," at http://jurist.law.pitt.edu/pardons5a.htm.
146. "By the Numbers: Huckabee's Clemency Record," KFSM News (July 28, 2004), http://www.kfsm.com/global/story.asp?s=2102254&ClientType=Printable.
147. Bob McCord, "Huckabee's Pardons," Arkansas-Times (July 29, 2004), http://www.arktimes.com/mccord/072904mccord.html.
148. "Through the 1970s, Democratic governors oversaw the handing out of 1,527 pardons, including a high of 477 pardons in 1970 under Gov. Francis W. Sargent. Through the 1990s, Republican governors pardoned just 90 people, a 95 percent drop from two decades earlier."
149. See Jason B. Grosky, "Critics: Pardons Are Too Political," Eagle-Tribune (October 13, 2002), http://www.eagletribune.com/news/stories/20021013/LN_001.htm.
150. See "Pardon Inquiry Moves Forward," ABC News (February 15, 2001), http://abcnews.go.com/sections/politics/DailyNews/clinton_pardon010215.html.
151. See Joe Conason, "The Bush Pardons," Salon (February 27, 2001), http://dir.salon.com/news/col/cona/2001/02/27/pardons/index.html.
152. See Steve Neal, "Editorial: Governor Is Out of Control," Chicago Sun-Times (October 22, 2002), 27.
153. See Michael Heise, "Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure," 89 Virginia Law Review (2003), 239, 309.
154. For another source of data on capital clemency, see "Executive Clemency Process and Execution Warrant Procedure In Death Penalty Cases," National Coalition to Abolish the Death Penalty (1993, with updates by the Death Penalty Information Center), at http://www.deathpenaltyinfo.org/article.php?did=126&scid=13#news.
155. Whatever source one uses, it is clear that as Radelet and Zsembik put it, "clemency in a capital case is extremely rare." See Michael Radelet and Barbara Zsembik, "Executive Clemency in Post-Furman Capital Cases," 27 University of Richmond Law Review (1992-93), 289, 304.
156. Susan Martin, "Commutation of Prison Sentences: Practice, Promise, and Limitation," Crime and Delinquency 4 (1983), 593, 596.
157. Looking at 1998, for example, reveals that sixty-eight people were executed. Only one death row inmate was granted clemency, a Texas man who "confessed" to six hundred murders but was found to be in Florida during the one killing for which he received a death sentence. See appendix B.
158. As Banner notes, "For centuries governors commuted death sentences in significant numbers. That pattern continued for the first two-thirds of the twentieth century. Florida commuted nearly a quarter of its death sentences between 1924 and 1966
159. North Carolina commuted more than a third between 1909 and 1954. Those figures dropped close to zero under new sentencing schemes." See Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2002), 291-92.
160. For a discussion of the situation in Texas and elsewhere, see Robert Salladay, "Clemency: Slim Chance These Days," San Francisco Examiner (November 29, 1998), http://www.sfgate.com/cgi-bin/article.cgi%3Ff=/examiner/archive/1998/11/29/NEWS8622.dtl&type=printable.
161. See Bruce Ledewitz and Scott Staples, "The Role of Executive Clemency in Modern Death Penalty Cases," 27 University of Richmond Law Review (1993), 227.
162. See Death Penalty Information Center, "Clemency News and Developments," http://www.deathpenaltyinfo.org/article.php?scid=13&did=850.)
163. Washington State Office of the Attorney General, Reprieves, Pardons and Commutations in Death Penalty Cases, http://www.atg.wa.gov/deathpenalty/pardons.shtml.
164. See appendix B.
165. See James Acker and Charles Lanier, "May God-or the Governor-Have Mercy: Executive Clemency and Executions in Modern Death-Penalty Systems," 36 Criminal Law Bulletin (2000), 200.
166. Samuel Gross and Phoebe Ellsworth, "Second Thoughts: Americans' Views of the Death Penalty at the Turn of the Century," in Be-yond Repair? America's Death Penalty (Durham: Duke University Press, 2003), 7, 13.
167. Quoted in Salladay, "Clemency: Slim Chance These Days." As Fiskesjo puts it, "In light of 'domestic' opinion, it is very often not the decision to pardon but the decision not to pardon that best furthers the political standing of the power-holder" See Magnus Fiskesjo, The Thanksgiving Turkey Pardon, The Death of Teddy's Bear, and the Sovereign Exception of Guantanamo (Chicago: Prickly Paradigm Press, 2003), 46.
168. As Cobb argues, "Political considerations have figured prominently in the unwillingness of many governors to be merciful. The popularity of the death penalty suggests to these officials that the safest course of action is to avoid the exercise of their clemency powers." See Paul Cobb, "Reviving Mercy in the Structure of Capital Punishment," 99 Yale Law Journal (1989), 389, 394.
169. Terry Sanford, "On Executive Clemency," in Messages, Addresses and Public Papers of Governor Terry Sanford, 1961-1965, at 552 (1966).
170. Craigg Hines, "A Heartening Rain as We Await the Flood," Houston Chronicle.com (January 14, 2003), http://www.chron.com/content/Archives.
171. Cruce's action and his reasoning were the subject of scathing criticism by Oklahoma's Court of Criminal Appeals. See Henry v. State 10 Okla. Crim. (1913), 369, 385. For a discussion of this case, see chapter 3 of this book.
172. Hines, "A Heartening Rain." For a more complete discussion of his views
173. see Winthrop Rockefeller. "Executive Clemency and the Death Penalty," 21 Catholic University Law Review (1971), 94.
174. "Five, Lives Spared, Hail Anaya's Move," New York Times (November 28, 1986), A18.
175. Hines, "A Heartening Rain."
176. Obren Casey, "Oklahoma's Governor Cruce Abolished Death Penalty," Oklahoma Historical Society Archive. 95.51, Box 2, File 4.
177. Bobby Dean Smith, "Lee Cruce: Governor of Oklahoma, 1911-1915." In Oklahoma's Governors, 1907-1929: Turbulent Politics. Leroy H. Fischer, ed. (Oklahoma Historical Society. Oklahoma City, 1981).
178. Lee Cruce, "State of the State Address" (January 8, 1913), at http://edl.ok.us/oar/governors/addresses/cruce1913.pdf.
179. Joe O'Brien, "He 'Killed' Oklahoma's Death Penalty," Daily Oklahoman (July 31, 1927), D1.
180. Smith, "Lee Cruce: Governor of Oklahoma, 1911-1915."
181. Casey, "Oklahoma's Governor Cruce Abolished Death Penalty."
182. "Governor Criticized for Commuting Sentence." Harlan's (January 4, 1913). Oklahoma Historical Society Archives, 95.51, Box 3, Filed 6.
183. Casey, "Oklahoma's Governor Cruce Abolished Death Penalty." A few years later Oklahoma would indeed witness one of this nation's worst race riots, the Tulsa riot in 1921.
184. See James Langton, "Mass Graves Hold the Secrets of American Race Massacre" (March 29, 1999), http://www.ritesofpassage.org/df99-articles/mass.htm.
185. Casey, "Oklahoma's Governor Cruce Abolished Death Penalty." In the first twenty-two years after the Oklahoma Territory was opened, citizens lynched eighty-five black men, far more than Texas's second place standing with forty during the same period.
186. Cruce, "State of the State Address."
187. O'Brien, "He 'Killed' Oklahoma's Death Penalty."
188. Cruce, "State of the State Address."
189. O'Brien, "He 'Killed' Oklahoma's Death Penalty."
190. "No Holiday for Governor Cruce: Finds Convicts Pardoned and Contracts Signed in His Absence." New York Times (August 4, 1913), 1.
191. O'Brien, "He 'Killed' Oklahoma's Death Penalty."
192. "Governor Criticized for Commuting Sentence."
193. Leroy H. Fischer, Oklahoma's Governors, 1907-1929: Turbulent Politics. Oklahoma Historical Society (Oklahoma City, OK, 1981).
194. Editorial. "The Governor's Message." Hollis Post-Herald (Hollis, OK) (December 19, 1912).
195. "Governor Criticized for Commuting Sentence."
196. Casey, "Oklahoma's Governor Cruce Abolished Death Penalty."
197. O'Brien. "He 'Killed' Oklahoma's Death Penalty."
198. "Fifteen Death Sentences Commuted by Winthrop Rockefeller: Legislators Are Dismayed." Arkansas Gazette (December 30, 1970), 3A.
199. "Arkansas Spares All on Death Row." New York Times (December 30, 1970), A9.
200. The Supreme Court did not rule on capital punishment in 1968, and more than six hundred men on death row nationwide sat in limbo four more years before Furman v. Georgia spared their lives.
201. Editorial. "Mr. Rockefeller and the Death Sentences." Arkansas Gazette (December 27, 1970), 3D.
202. The ratio of Democrats to Republicans was 97 to 3 during that period.
203. Letter from Rev. J. F. Cooley to Winthrop Rockefeller (November 17, 1970). Winthrop Rockefeller Papers, Record Group III, Box 443, Folder 2.
204. Editorial. "Mr. Rockefeller and the Death Sentences."
205. Ernest Dumas, "Winthrop Rockefeller Will Discuss His Plans Today on Fifteen Death Terms." Arkansas Gazette (December 23, 1970), 1A.
206. "Winthrop Rockefeller Selects Five to Offer Advice on Fifteen Death Terms." Arkansas Gazette (December 24, 1970), 3D.
207. Ernest Dumas, "What a Governor May Do About Fifteen on Death Row." Arkansas Gazette (December 27, 1970), 3D.
208. "Arkansas Spares All on Death Row."
209. Dumas, "Fifteen Death Sentences Commuted by Winthrop Rockefeller."
210. "Fifteen Death Sentences Commuted by Winthrop Rockefeller: Legislators Are Dismayed." Arkansas Gazette (December 30, 1970), 3A.
211. Editorial. "Mr. Rockefeller and the Death Sentences." Editorial. "Mr. Rockefeller's Act of Conscience." Arkansas Gazette (December 31, 1970), 6A.
212. Editorial. Jacksonville Daily News (December 30, 1970), 8.
213. Memo, count of letters for and against governor's commutations (January 21, 1971), Winthrop Rockefeller Papers, Record Group III, Box 646, Folder 1.
214. "Fifteen Death Sentences Commuted by Winthrop Rockefeller: Legislators Are Dismayed."
215. "Arkansas Spares All on Death Row."
216. "Fifteen Death Sentences Commuted by Winthrop Rockefeller: Legislators Are Dismayed."
217. "Arkansas Spares All on Death Row."
218. Letter from Ed Bethune to Winthrop Rockefeller (December 30, 1970), Winthrop Rockefeller Papers, Record Group III, Box 339, Folder 4.
219. Ray Randell, letter to the Editor of the Arkansas Gazette (January 2, 1971), 3D.
220. "Fifteen Death Sentences Commuted by Winthrop Rockefeller: Legislators Are Dismayed."
221. Wayne Jordan, "Prosecutors Admit Fifteen Commutations Legal: Hint Law Should Be Changed." Arkansas Gazette (December 31, 1970), 1A. While George Ryan would face criticism for dragging the families of victims through a long and emotionally draining month of hearings in order to make his decision, Rockefeller did not include the voices of the victims' families in his clemency deliberation at all.
222. Mrs. Ralph Thomas, letter to the Editor of the Arkansas Gazette (January 2, 1971), 3D.
223. Jordan, "Prosecutors Admit Fifteen Commutations Legal."
224. "Fifteen Death Sentences Commuted by Winthrop Rockefeller: Legislators Are Dismayed."
225. Mike Harmon, letter to the Editor of the Arkansas Gazette (January 2, 1971), 3D.
226. "Fifteen Death Sentences Commuted by Winthrop Rockefeller: Legislators Are Dismayed."
227. Jordan, "Prosecutors Admit Fifteen Commutations Legal: Hint Law Should Be Changed."
228. "Winthrop Rockefeller Tours Prisons, Is Thanked." Arkansas Gazette (January 2, 1971).
229. Winthrop Rockefeller, "Executive Clemency and the Death Penalty." 21 Catholic University Law Review (1971), 97.
230. Death Penalty Information Center. Found at www.deathpenaltyinfo.org.
231. "Statement by Governor Toney Anaya on Crime and Capital Punishment" (Santa Fe, New Mexico. November 26, 1986).
232. Richard E. Meyer, "New Mexico Death Sentences Commuted." Los Angeles Times (November 27, 1986), A1.
233. Toney Anaya, "Clemency and Pardons Symposium: Statement by Toney Anaya on Capital Punishment." 27 University of Richmond Law Review (1992), 177.
234. Meyer, "New Mexico Death Sentences Commuted."
235. "Statement by Governor Toney Anaya on Crime and Capital Punishment."
236. Robert Reinhold, "Outgoing Governor in New Mexico Bars the Execution of Five." New York Times (November 27, 1986), A1.
237. David Staats, "Anaya Cuts Death Sentences to Life. Groups Praise Move; Carruthers Denounces 'Violation of Duty.'" Albuquerque Journal (November 27, 1986), A1.
238. Kate Nelson, "What Can One Man Do? Be Haunted by the Death Penalty." Albuquerque Tribune (February 15, 2003), at http://www.stopcapitalpunishment.org/coverage/170.html.
239. Meyer, "New Mexico Death Sentences Commuted."
240. "Statement by Governor Toney Anaya on Crime and Capital Punishment."
241. Anaya, "Clemency and Pardons Symposium: Statement by Toney Anaya on Capital Punishment."
242. "Statement by Governor Toney Anaya on Crime and Capital Punishment."
243. Memoranda and individual correspondence received by the governor, press clippings. Papers of Toney Anaya, Center for Southwest Research, Collection 575, Box 17, Folders 14, 16-18.
244. Meyer, "New Mexico Death Sentences Commuted," A22.
245. Anaya, "Clemency and Pardons Symposium: Statement by Toney Anaya on Capital Punishment."
246. Editorial. "Anaya's Meddling Has Gone Too Far." The New Mexican (December 7, 1986), A4.
247. David Staats,"Attorney General Cites Way to Fight Commutation." Albuquerque Journal (November 28, 1986), A1.
248. David Staats, "High Court Turns Back District Attorney's Appeal." Albuquerque Journal (December 23, 1986), A3.
249. Susan Hansen, "Governor's 'Beliefs' Stop Executions." National Catholic Reporter (December 12, 1986), A1.
250. Nelson, "What Can One Man Do? Be Haunted by the Death Penalty."
251. Papers of Toney Anaya, Center for Southwest Research, Collection 575, Box 17, Folder 14.
252. Anaya, "Clemency and Pardons Symposium: Statement by Toney Anaya on Capital Punishment."
253. Quoted in Grosky, "Critics: Pardons Are Too Political."
254. Steve Whitworth, "Haine Enraged by Governor's Move," The Telegraph (Alton, IL) (January 12, 2003), http://www.stopcapitalpunishment.org/coverage/44.html.
255. Coleen Klasmeier, "Towards a New Understanding of Capital Clemency and Procedural Due Process," 75 Boston University Law Review (1995), 1507.
256. Paul Ricouer, The Just, David Pellauer, trans. (Chicago: University of Chicago Press, 1995), 144.
257. As Hugo Adam Bedau puts it, "Clemency decisions-even in death penalty cases-are standardless in procedure, discretionary in exercise, and unreviewable in result." See Hugo Adam Bedau, "The Decline of Executive Clemency in Capital Cases," 8 New York University Review of Law and Social Change (1990-91), 252, 255.
258. Henry Weihofen, "Pardon as an Extraordinary Remedy," 12 Rocky Mountain Law Review (1940), 112, 114.
259. See also Victoria Palacios, "Faith in Fantasy: The Supreme Court's Reliance on Commutation to Ensure Justice in Death Penalty Cases," 49 Vanderbilt Law Review (1996), 311, 331-32.
260. See Memorial of Mexico (June 20, 2003), submitted in the Case concerning Avena and Other Mexican Nationals, Mexico v. United States of America, at http://www.icj-cij.org/icjwww/idocket/imus/imusframe.htm.
261. Peter Fitzpatrick, "Life, Death, and the Law-and Why Capital Punishment Is Legally Insupportable," 47 Cleveland State Law Review (1999), 483, 484, 486, 487.
262. U.S. Department of Justice, 3 Attorney General's Survey of Release Procedures (1939), 209, 295.
263. Kobil calls this "the enduring paradoxical nature of clemency." See Daniel Kobil, "Chance and the Constitution in Capital Clemency Cases," 28 Capital University Law Review (2002), 567, 569.
264. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Daniel Heller-Roazen, trans. (Stanford: Stanford University Press, 1998).
265. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 2nd ed., George Schwab trans. (Cambridge, MA: MIT Press, [1932] 1985), 5.
266. For a different view, see Bruce Ackerman, "The Emergency Constitution," 113 Yale Law Journal (2004), 1029.
267. Schmitt, Political Theology, 13.
268. See Paul Kahn, "The Question of Sovereignty," 40 Stanford Journal of International Law (2004), 263.
269. Agamben, Homo Sacer, 17-18. For a discussion of Agamben's concept of the exception
270. see Nasser Hussain, "Thresholds: Sovereignty and the Sacred," Law and Society Review 34 (2000), 495, 500-501.
271. Agamben, Homo Sacer, 18 As Derrida puts it, "The pardon is not, it should not be normal, normative, normalizing. It should remain exceptional and extraordinary, by proof of the impossible: as if it could interrupt the ordinary course of historic temporality."
272. See Jacques Derrida, "The Century and the Pardon," Le Mondes des Debats, no. 9 (December, 1999), 3; online at http://fixion.sytes.net/pardonEng.htm.
273. Andrew Norris, "Introduction: Giorgio Agamben and the Politics of the Living Dead," in Politics, Metaphysics, and Death: Essays on Giorgio Agamben's Homo Sacer, unpublished ms., 2003, p. 15.
274. See Magnus Fiskesjo, The Thanksgiving Turkey Pardon, The Death of Teddy's Bear, and the Sovereign Exception of Guantanamo (Chicago: Prickly Paradigm Press, 2003), 51.
275. Baron de Charles de Secondat Montesquieu, The Spirit of the Laws [1748]. Anne M. Cohler et al., eds. and trans. (Cambridge: Cambridge University Press, 1989) bk. 11, 147.
276. William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 (Chicago: University of Chicago Press, 1979), 4:389.
277. Derrida, "The Century and the Pardon," 5, 9.
278. Derrida, "The Century and the Pardon," 6.
279. Clemency is of course not the only place where law recognizes such a power. Other examples of this recognition include a prosecutor's decision not to charge someone with a crime or a jury's decision not to convict.
280. Derrida, "The Century and the Pardon."
281. See also Fiskesjo, The Thanksgiving Turkey Pardon, 3. Pardon, Fiskesjo says, is "a state of willed emergency where raw power roams free, no longer bound by the constraints or directions of any formal law or legislation."
282. See Jacques Derrida, "Part I: Forgiving," 25-26.
283. Blackstone, Commentaries, 4:397-402.
284. James Wilson, "Executive Department," Lectures on Law in The Works of James Wilson, vol. 2, Robert McCloskey, ed. (Cambridge, MA: Harvard University Press, [1791] 1967): 442-44.
285. Joseph Story, Commentaries on the Constitution of the United States, 3 vols. (Cambridge: Brown, Shattuck, 1833), section 1491.
286. James Wilson, "Executive Department," 442-44.
287. See, for example, Palacios, "Faith in Fantasy," 335-36.
288. Typical is the remark of Justice Frankfurter, who said, "It is not for this Court even remotely to enter into the domain of clemency reserved by the Constitution exclusively to the President." See Rosenberg et al. v. United States, 346 U.S. (1953), 322.
289. The amazing trick, as Fish defines it, is "the trick by which the law rebuilds itself in mid-air without ever touching down." See Stanley Fish, "The Law Wishes to Have a Formal Existence," in The Fate of Law, Austin Sarat and Thomas R. Kearns, eds. (Ann Arbor: University of Michigan, 1991), 196.
290. See United States v. Wilson, 32 U.S. 150, 160 (1833); 159.
291. Blackstone Commentaries on the Laws of England, 4:397-402.
292. United States v. Wilson, 160-161. Similarly, the Supreme Court of Virginia, writing in 1872, said that the validity of a pardon depends on its "acceptance." "It may be rejected," the court held, "and if rejected, there is no power to force it upon him." See Lee v. Murphy, 63 Va. (1872) 789, 798.
293. On the force of law, see Jacques Derrida, "Force of Law: The Mystical Foundation of Authority," 11 Cardozo Law Review (1990), 919.
294. In the words of contrary authority, "For it is the king's will that he shall not be [hanged], and the king has an interest in the life of his subject." See United States v. Wilson, 162, 163.
295. For discussions of such judicial deference, see Daniel Kobil, "The Quality of Mercy Strained: Wresting the Pardoning Power from the King," 69 Texas Law Review (1991), 569, 595-604
296. Beau Breslin and John J. P. Howley, "Defending the Politics of Clemency," 81 Oregon Law Review (2002), 231, 240-42.
297. Ex Parte Wells, 59 U.S. (1856) 307.
298. For a discussion of their constitutional roots as well as a qualified defense of conditional pardons, see Harold Krent, "Conditioning the President's Conditional Pardon Power," 89 California Law Review (2001), 1665, 1719-21.
299. Ex Parte Wells, 309-310.
300. Ex Parte Wells, 310.
301. Emilios Christodoulidis, "The Irrationality of Merciful Legal Judgment: Exclusionary Reasoning and the Question of the Particular," 18 Law and Philosophy (1999), 215, 218.
302. Also see Clara Ann Hage Johnson, "Entitled to Clemency: Mercy in the Criminal Law," 10 Law and Philosophy (1991), 109, 115.
303. I think that Daniel Kobil captures the basis for this anxiety when he says, "Historically, the institution of clemency seems to have had more to do with power than justice." See Kobil, "The Quality of Mercy Strained," 583.
304. Ex Parte Garland, 71 U.S. (1866), 333, 336, 376.
305. Ex Parte Garland, 380-81. In Fields's words, A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
306. See Mortimer R. Kadish and Sanford H. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Stanford: Stanford University Press, 1973).
307. Ex Parte Grossman, 121.
308. Biddle v. Perovich 274 U.S. (1927) 480, 485.
309. See P. E. Digeser, "Justice, Forgiveness, Mercy, and Forgetting: The Complex Meaning of Executive Pardoning," 31 Capital University Law Review (2003), 161, 165. Digeser says pardon is a form of "political forgiveness . . . [that] is wholly public."
310. Biddle v. Perovich, 486-87.
311. On the adequacy of Holmes's reasoning, see Mark Straaer, "Limits of the Clemency Power on Pardons, Retributivists, and the United States Constitution," 41 Brandeis Law Journal (2002), 85, 111-12.
312. See Henry v. State, 136 P. (1913), 982, 987.
313. Schick v. Reed, 483 F2d (1973) 1266, 1267.
314. Hoffa v. Saxbe, 378 F. Supp. (1974) 1221, 1231.
315. Jamison v. Flanner, 116 Kan (1924), 624, 630, 632. As the Supreme Court of Tennessee put it, "Executive clemency operates outside the letter of the law."
316. See Workman v. Tennessee, 22 S.W. 3d (2000), 807, 812. Or in the words of Judge Arnold of the U.S. District Court for the Eastern District of Arkansas, grants of clemency "are by definition acts of grace, bestowed on no fixed basis and according to no ascertainable standards. They are manifestations of mercy, not of the operation of law."
317. See Rogers v. Britton, 476 F. Supp (1979), 1036, 1039.
318. Eacret v. Holmes, 333 P. 2d (1958), 741, 742.
319. See State v. Jones, 639 So. 2d (1994), 1144, 1150.
320. Sullivan v. Askew, 348 So. 2d (1977) 312, 315.
321. In re Sapp, 118 F. 3d (1997), 460, 465.
322. See Otey v. Nebraska, 485 N.W. 2d (1992), 153, 166. (The Nebraska Board of Pardons has "unfettered discretion" to grant or deny a commutation "for any reason or no reason at all.")
323. Also Joubert v. Nebraska Board of Pardons, 87 F.3d (1996), 966 (8th Cir.).
324. Ex Parte Crump, 135 P. (1913), 428.
325. Herrera v. Collins, 506 U.S. (1993), 390.
326. See Kobil, "Chance and the Constitution," 572.
327. Also Kathleen Ridolfi, "Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency," 24 New York Review of Law and Social Change (1998), 43, 47.
328. Herrera v. Collins, 412.
329. This conception is important to those who see clemency through the lens of retributive justice. See, for example, Moore, Pardons.
330. Herrera v. Collins, 412.
331. See Case Concerning Avena and Other Mexican Nationals, Mexico v. United States of America (March 31, 2004), 54. Found at http://www.icj-cij.org/icjwww/idocket/imus/imusframe.htm.
332. Ohio Adult Parole Authority v. Woodard, 523 U.S. (1998), 272.
333. See Adam Gershowitz, "The Diffusion of Responsibility in Capital Clemency," 17 Journal of Law and Politics (2001), 669, 673.
334. "Rarely, if ever (are clemency decisions) appropriate subjects for judicial review." See Ohio Adult Parole Authority v. Woodard, 276.
335. Ohio Adult Parole Authority v. Woodard, 280-81; 285.
336. Also Kenneth Williams, "The Deregulation of the Death Penalty," 40 Santa Clara Law Review (2000) 677, 719
337. Kobil, "Chance and the Constitution," 573. Some courts have also taken notice of the division in Woodard.
338. See Duvall v. Keating, 162 F. 3d 1058, 1060
339. Workman v. Bell, 245 F.3d (2001), 849, 852.
340. Ohio Adult Parole Authority v. Woodard, 289.
341. Ohio Adult Parole Authority v. Woodard, 292 (Stevens dissenting).
342. See Mark Strasser, "Some Reflections on the President's Pardon Power," 31 Capital University Law Review (2003), 143, 153-59. Strasser argues that Stevens's imagined cases are "not the kinds of cases that might reasonably be expected to occur."
343. See, for example, Sellers v. Oklahoma, 973 P. 2d (1999), 894, 896
344. Anderson v. Davis, 279 F.3d 674, 676
345. Faulder v. Texas, 178 F. 3d (1999), 343-44
346. Duvall v. Keating. For an important exception, see McGee v. Arizona State Board of Pardons and Paroles, 376 P. 2d 779, 781. (Board of Pardons ordered to hold a hearing at which McGee would be allowed to present evidence in support of his application for clemency.)
347. Bacon v. Lee, 353 N.C. (2001) 696, 712.
348. People ex rel. Lisa Madigan v. Snyder, 208 Ill. 2d (2004) 457, 473, 480.
349. See Patrick Buchanan, "George Ryan's Pathetic Farewell," Human Events 59 (2003), 1. Buchanan labeled Ryan's commutation "arbitrary, capricious, immoral and anti-democratic."
350. George Fletcher, Basic Concepts of Legal Thought (New York: Oxford University Press, 1996), 11
351. Yet the rule-of-law ideal points toward a set of concepts, ideas, ideals summarized in the idea that, as Cass puts it, "something other than the mere will of the individual deputized to exercise government powers must have primacy."
352. Ronald Cass, The Rule of Law in America (Baltimore: The Johns Hopkins University Press, 2001), 3.
353. See also Richard Fallon, "'The Rule of Law' as a Concept in Constitutional Discourse," 97 Columbia Law Review (1997), 1.
354. William F. Buckley Jr., "Strange Uses of Tolerance," San Diego Union-Tribune (January 27, 1985), C2.
355. Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Knopf, 1945), 278.
356. See Planned Parenthood v. Casey, 505 U.S. 833, 868 (1992).
357. Cass, The Rule of Law in America, xii. Political scientist Samuel Huntington notes, "Western concepts differ fundamentally from those prevalent in other civilizations. Western ideas of individualism, liberalism, constitutionalism, human rights, equality, liberty, the rule of law . . . often have little resonance in Islamic, Confucian, Japanese, Hindu, Buddhist, or Orthodox culture."
358. Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon and Schuster, 1996), 311.
359. Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Liberty Press, 1991), 389.
360. Henry Cisneros, "Extra Spice for American Culture," Financial Times of London (May 24, 2004), 17.
361. See also Marci Hamilton, "The Rule of Law: Even as We Try to Export the Ideal of Justice by Law, Not Whim, Some in America Resist That Very Ideal" (October 23, 2003), at http://writ.news.findlaw.com/hamilton/20031023.html.
362. See Jonathan Lippman, "Preserving Safety and Access to the Courts," 83 New York Law Journal (April 30, 2004), 9.
363. Ann Parks, "Former Secretary of Defense Shares Views on War, Business and the Rule of Law," Daily Record (May 17, 2004).
364. See also Law Tribune Advisory Board, "Are We Still the Land of the Free," Connecticut Law Tribune (April 12, 2004), 19.
365. Ron Paul's Texas Straight Talk, "War in Iraq, War on the Rule of Law?" (August 26, 2002), http://www.house.gov/paul/tst/tst2002/tst082602.htm.
366. See also "Our Opinions: Ignoring Detainees Rights Weakens U.S. Principles," Atlanta Journal Constitution (May 18, 2004), 10a
367. John Hutson, "Rule of Law: Guantanamo Offers U.S. a Chance to Showcase Ideal of Due Process," The Recorder (January 16, 2004), 4.
368. See Brian Hoffstadt, "Normalizing the Federal Clemency Power," 79 Texas Law Review (2001), 561, 562.
369. Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law. Ann Arbor: University of Michigan Press, 2004.
370. Also Magnus Fiskesjo, The Thanksgiving Turkey Pardon, The Death of Teddy's Bear, and the Sovereign Exception of Guantanamo (Chicago: Prickly Paradigm Press, 2003), 53.
371. The Federalist No. 74. New York: The Modern Library, 1956, 483.
372. For a recent repudiation of that effort, see Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004).
373. Francis Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (New Haven: Yale University Press), 1981.
374. See Williams v. New York, 337 US 241, 247-49 (1949).
375. David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001), 36.
376. See Andrew Von Hirsch, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976), xxix.
377. See also Karl Menninger, The Crime of Punishment (New York, Viking Press, 1969).
378. For a description and critique of the practices of indeterminate sentencing, see Marvin Frankel, Criminal Sentences: Law Without Order (New York; Hill and Wang), 1976.
379. See, for example, Keally McBride, "Hitched to the Post: Prison Labor, Choice, and Citizenship," 30 Studies in Law, Politics, and Society (2004), 107.
380. Elizabeth Rapaport, "Retribution and Redemption in the Operation of Executive Clemency," 74 Chicago-Kent Law Review (2000), 1501.
381. Rehabilitative approaches to punishment are less interested in giving the offender what he or she deserves than they are in assigning punishment on the basis of what an offender needs.
382. As Daniel Markel puts it, mercy "refers primarily to leniency afforded to criminal offenders on the basis of characteristics that evoke compassion or sympathy but that are morally unrelated to the offender's competence and ability to choose to engage in criminal conduct." See Daniel Markel, "Against Mercy," 88 Minnesota Law Review (2004), 1041, note 1.
383. Rapaport, "Retribution and Redemption in the Operation of Executive Clemency," 1501. Redemption is, of course, not the only grounds on which clemency can be based. Among other reasons are, as we have seen, considerations of justice, that is, pardoning to correct miscarriages of justice, and principled opposition to an entire type of punishment, for instance the death penalty.
384. On the significance of this last factor, see Stephen Garvey, "Punishment as Atonement," 46 UCLA Law Review (1999), 1801.
385. Rapaport, "Retribution and Redemption in the Operation of Executive Clemency," 1530.
386. The Supreme Court in U.S. v. Booker, 125 S. Ct. 1006 (2005), found that, insofar as they were regarded as mandatory, the Federal Sentencing Guidelines violated the Sixth Amendment. The Court held that the guidelines could be used in an advisory fashion without suffering such a constitutional defect. The result of the Court's decision is to restore greater sentencing discretion to federal judges.
387. Fox Butterfield, "U.S. 'Correctional Population' Hits New High," New York Times (July 26, 2004), http://www.nytimes.com/2004/07/26/national/26parole.html.
388. See Jonathan Simon, Governing through Crime: The War on Crime and the Transformation of American Governance, 1960-2000 (New York: Oxford University Press, forthcoming).
389. James Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between American and Europe (New York: Oxford University Press, 2003), 14-15.
390. See Stuart Scheingold, The Politics of Law and Order: Street Crime and Public Policy (New York: Basic Books, 1984).
391. See William Connolly, The Ethos of Pluralization (Minneapolis: University of Minnesota Press, 1995), chapter 2.
392. See Scheingold, The Politics of Law and Order, 64.
393. Scheingold, The Politics of Law and Order, 60.
394. Also William Connolly, "The Will, Capital Punishment, and Cultural War," in The Killing State: Capital Punishment in Law, Politics, and Culture, Austin Sarat, ed. (New York: Oxford, 1999), 200.
395. Since the claim that punishment is now too lenient is embedded in cultural understandings rather than experience with crime, the implication that we are not now imposing enough punishment is a cultural tenet, a value judgment not subject to empirical refutation.
396. See Scheingold, The Politics of Law and Order, 226-27. Thus incontestible documentation that the United States is unrivaled among Western democracies in severity of sentences and time served for criminal violence is ignored or deemed irrelevant.
397. Studies have documented public obsession with the ability of the criminal justice system to keep offenders off the streets (see Julian V. Roberts and Anthony N. Doob, "News Media Influences on Public Views of Sentencing" 14 Law and Human Behavior [1991], 451).
398. Several other studies describe the media's predilection for (murder) stories of criminal violence against the person. (See Doris A. Graber, Crime News and the Public [New York; Praeger, 1980]
399. Richard Victor Ericson, Patricia M. Baranek, and Janet B. L. Chan, Representing Order: Crime, Law, and Justice in the News Media [Toronto: University of Toronto Press, 1991]
400. Philip Schlesinger and Howard Tumber, Reporting Crime: The Media Politics Of Criminal Justice [New York: Oxford University Press, 1994]
401. especially for serial killers, Philip Jenkins, Using Murder: The Social Construction of Serial Homicide [New York: A. de Gruyter, 1994].)
402. James F. Hodgson and Debra S. Kelley, eds., Sexual Violence: Policies, Practices, and Challenges in the United States and Canada (Westport, CT.: Praeger, 2002).
403. See Katherine Beckett and Theodore Sasson, The Politics of Injustice: Crime and Punishment in America (London: Sage Publications, 1999).
404. See Phoebe Ellsworth and Samuel R. Gross, "Hardening of the Attitudes: Americans' Views on the Death Penalty," Journal of Social Issues 50 (1994), 44.
405. The theme of the Horton ads was apparently replicated in concurrent media crime coverage. Over the period 1985-89, Jamieson reports that she found that in crime stories of 1998 there was a significant increase in news of black alleged offenders and female victims, with no corresponding increase in reported crime. Katherine Jamieson, Dirty Politics (Oxford University Press: New York, 1992), 134.
406. See Gore Vidal, Palimpsest: A Memoir (New York: Random House, 1992).
407. See Von Hirsch, Doing Justice, 12, 29. "The most obvious drawback of allowing wide-open discretion . . . is the disparity it permits."
408. Robert Martinson, "What Works?-Questions and Answers about Prison Reform," The Public Interest 10 (1974), 22.
409. As Von Hirsch argues, "In our day-to-day experience, and in our preliminary research findings, it seemed that rehabilitation was far less often achieved than our predecessors would have believed. . . . Despite every effort and every attempt, correctional treatment programs have failed." See Doing Justice, xxxii, xxxviii.
410. See, for example, Jessica Mitford, Kind and Usual Punishment: The Prison Business (New York: Knopf, 1973).
411. Von Hirsch, Doing Justice.
412. See Ernest van den Haag, Punishing Criminals: Concerning a Very Old and Painful Question (New York: Basic Books, 1975).
413. Herbert Morris, "Persons and Punishment," in Human Rights, Abraham Melden, ed. (Belmont, CA: Wadsworth, 1970).
414. Von Hirsch, Doing Justice, xxix.
415. Morris, "Persons and Punishment," 115, 118.
416. "To say someone 'deserves' to be rewarded or punished is to refer to his past conduct, and assert that its merit or demerit is reason for according him pleasant or unpleasant treatment." Von Hirsch, Doing Justice, 46.
417. Morris, "Persons and Punishment," 118.
418. Von Hirsch observes that "if one asks how severely a wrongdoer deserves to be punished a familiar principle comes to mind: Severity of punishment should be commensurate with the seriousness of the wrong. . . . Disproportionate penalties are undeserved." Doing Justice, 66.
419. See also Andrew Von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick, NJ: Rutgers University Press, 1985), chapter 3.
420. Morris, "Persons and Punishment," 119.
421. Morris, "Persons and Punishment," 114.
422. Von Hirsch, Doing Justice, xxxix.
423. Morris, "Persons and Punishment," 123.
424. Herrera v. Collins, 506 U.S. (1993), 390, 412.
425. See Daniel Kobil, "The Quality of Mercy Strained: Wrestling the Pardoning Power from the King," 69 Texas Law Review (1991), 569, 575.
426. Also Daniel Kobil, "The Evolving Role of Clemency in Capital Cases," in America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, James Acker, Robert Bohm, and Charles Lanier, eds. (Durham, NC: Carolina Academic Press, 1998), 531-42.
427. Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest (New York: Oxford University Press, 1989), 91.
428. Linda Meyer provides a very different perspective on this issue as well as an important critique of retributivism when she contends that every act of punishment is also "a form of forgiveness." See Linda Meyer, "Forgiveness and Public Trust," 27 Fordham Urban Law Journal (2000), 1515, 1530.
429. Moore, Pardons, 91.
430. Kathleen Dean Moore, "Pardon for Good and Sufficient Reasons," 27 University of Richmond Law Review (1992-93), 281.
431. Moore, Pardons, 11.
432. Moore, "Pardon for Good and Sufficient Reasons," 284.
433. Moore, Pardons, 225.
434. Daniel Kobil, "How to Grant Clemency in Unforgiving Times," 31 Capital University Law Review (2003), 219, 223.
435. Markel, "Against Mercy," 1429, note 23.
436. Markel, "Against Mercy," 1472.
437. Markel, "Against Mercy," 1456.
438. See, for example, L. Gregory Jones, Embodying Forgiveness: A Theological Analysis (New York: Eerdmans Publishing Company, 1995).
439. These efforts are discussed in Andrew Von Hirsch, Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Oxford: Hart Publishing, 2003).
440. Hugo Adam Bedau, "A Retributive Theory of the Pardoning Power," 27 University of Richmond Law Review (1992-93), 185, 200. Bedau develops a systematic critique of the retributivist position that points him to mercy as providing the basis for clemency.
441. See, for example, P. E. Digeser, "Justice, Forgiveness, Mercy, and Forgetting: The Complex Meaning of Executive Pardoning," 31 Capital University Law Review (2003), 161, 166.
442. See Rapaport, "Retribution and Redemption in the Operation of Executive Clemency," 1534-35.
443. See Margaret Colgate Love, "Of Pardons, Politics and Collar Buttons: Reflections on the President's Duty to Be Merciful," 27 Fordham Urban Law Journal (2000), 1483, 1502.
444. Love, "Fear of Forgiving," 127.
445. Love, "Of Pardons," 1503.
446. Love, "Fear of Forgiving," 126.
447. Love, "Of Pardons," 1503; 1506.
448. For the elaboration of a related concept, "political forgiveness," see Digeser, "Justice, Forgiveness," 166.
449. In addition, Digeser holds open the idea that clemency can represent an "official act of amnesia" whose purpose is "to further the peace and security of the state," 176.
450. See Robert Ferguson, "The Judicial Opinion as a Literary Genre," 2 Yale Journal of Law and the Humanities (1990), 201.
451. A recent Fox News poll found that 69 percent of Americans favor the death penalty for persons convicted of premeditated murder, a drop of 7 percentage points from the number of respondents supporting capital punishment in 1997. The poll revealed that 23 percent of respondents opposed capital punishment, and 8 percent were not sure. In previous years, support for the death penalty registered 76 percent in 1997, 74 percent in 1998, 68 percent in 2000, and 2001. (Fox News, June 10, 2003), at http://www.deathpenaltyinfo.org/article.php?scid=23&did=210#foxnews7/03.
452. "We live in a culture where more and more people are claiming their own holocaust . . . etc. The victim culture creates a compassion fatigue, which interferes with helping those who truly need and deserve our help."
453. See Ofer Zur, "Psychology of Victimhood: Reflections on a Culture of Victims" (1994), at http://www.drozur.com/victimhood.html.
454. Also Susan D. Moeller, Compassion Fatigue: How the Media Sell Disease, Famine, War and Death (New York: Routledge, 1999).
455. See Daniel Markel, "Against Mercy," 88 Minnesota Law Review (2004), 1421.
456. Charles Sykes, A Nation of Victims: The Decay of the American Character (New York: St. Martin's Press, 1992).
457. Thomas Jipping, "Extending Mercy to the Wrong Group" (January 17, 2003), http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=30536.
458. As John Douglas remarked, "The bottom line is that Governor Ryan showed mercy to the merciless."
459. See John Douglas, "Mercy to the Merciless: Governor Ryan's Blanket Commutation," Newsletter (January 28, 2003), http://www.johndouglasmindhunter.com/newsletter/030128.php.
460. For a contrary view, see Thomas J. Broderick, "Commutation Is Justice, Not Mercy," New Ground 84 (September-October 2002), http://www.chicagodsa.org/ngarchive/ng84.html.
461. This and other quotations from Governor Ryan's "I Must Act Speech" may be found in appendix A.
462. See "Is It Wrong to Commute Death Row? Retribution, Atonement, and Mercy," 82 North Carolina Law Review (2004), 1319, 1343.
463. Martha Nussbaum, "Equity and Mercy," Philosophy and Public Affairs 22 (1993), 86, 103.
464. As noted in chapter 2 of this book, Lee Cruce of Oklahoma explained his commutations by saying, "I am today more confirmed than ever in my opposition to this ancient and uncivilized form of human punishment."
465. See Joe O'Brien, "He Killed Oklahoma's Death Penalty," Daily Oklahoman (July 31, 1927), D1. Or, as Governor Anaya of New Mexico said in announcing his blanket commutation, "I call for the abolition of the death penalty because it is inhumane, immoral, anti-God, and is incompatible with an enlightened society." "Statement by Governor Toney Anaya on Crime and Punishment," Santa Fe, New Mexico. November 26, 1986.
466. Zur, "Psychology of Victimhood: Reflections on a Culture of Victims."
467. For a description of the retributive theory of clemency, see chapter 4. Also Kathleen Dean Moore, "Pardon for Good and Sufficient Reasons," 27 University of Richmond Law Review (1992-93), 281
468. Daniel Kobil, "The Quality of Mercy Strained: Wresting the Pardoning Power from the King," 69 Texas Law Review (1991), 569.
469. His critique of capital punishment is systemic not moral; his justification oddly evocative of a seventeenth-century view of sovereign prerogative.
470. Jennifer Culbert, "The Body in Payne: The Rhetoric of Victims' Rights and the Predicament of Judgment." Paper presented to the 1995 Annual Meeting of the Law and Society Association, Toronto, Canada, 8.
471. Ryan relied, Kobil only somewhat inaccurately claims, "entirely on retributive arguments." Daniel Kobil, "How to Grant Clemency in Unforgiving Times," 31 Capital University Law Review (2003), 219, 227.
472. Stephen Garvey recently has argued that mass clemency of the kind that Ryan issued cannot be squared with retributive principles. Garvey, "Is It Wrong to Commute Death Row? Retribution, Atonement, and Mercy," 1319. For a contrasting view, see Daniel Markel, "Commuting Death Row," unpublished manuscript, 2004.
473. "Clemency," Rehnquist said, "is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Herrera v. Collins, 506 U.S. (1993), 390, 412. For a more complete discussion of Rehnquist's position, see chapter 3 of this book.
474. See Susan Bandes, "Introduction," in The Passions of Law, Susan Bandes, ed. (New York: New York University Press, 1999), 1, 7.
475. See Susan Jacoby, Wild Justice: The Evolution of Revenge (New York: Harper & Row, 1983), 115.
476. "Insofar as humanly possible . . . law attempts to remove personal animus from the process of apportioning blame and exacting retribution. It is the removal of personal animus . . . that distinguishes the rule of law from the rule of passion." On just deserts, see Richard Singer, Just Deserts: Sentencing Based on Equality and Desert (Cambridge, MA: Ballinger Publishing Company, 1979)
477. Andrew von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick, NJ: Rutgers University Press, 1985).
478. Kant, Metaphysical Elements of Justice, 101.
479. See Terry Aladjem, "Revenge and Consent," unpublished manuscript, 1990, 9.
480. For a discussion of the role of emotion in justice, see Samuel Pillsbury, "Emotional Justice: Moralizing the Passions of Criminal Justice," 74 Cornell Law Review (1989), 655.
481. St. Augustine, The Writings of St. Augustine (New York: Fathers of the Church, 1947), 168-69.
482. Lawrence Becker, "Criminal Attempt and the Theory of the Law of Crimes," Philosophy & Public Affairs 3 (1974), 262.
483. Quoted in J. Ferrer, Crimes and Punishments (London: Chatto and Windus, 1880), 190.
484. See Markus Dirk Dubber, Victims in the War on Crime: The Use and Abuse of Victims' Rights (New York: New York University Press, 2002).
485. "President Calls for Crime Victims' Rights Amendment" (April 16, 2002), http://www.whitehouse.gov/news/releases/2002/04/20020416-1.html.
486. See also Ezzat A. Fattah, "Victim's Rights: Past, Present and Future" (2001), at http://www.enm.justice.fr/centre_de_ressources/dossiers_reflexions/oeuvre_justice/victims_rights1.htm.
487. In 1981 President Reagan proclaimed the week of April 19 the first "National Victims Rights Week."
488. See Proclamation No. 4831, 3 C.F.R. 18 (1982).
489. See Leroy Lamborn, "Victim Participation in the Criminal Justice Process: The Proposal for a Constitutional Amendment," 34 Wayne Law Review (1987), 125.
490. Moreover, "Today, the constitutions of at least 20 states now contain 'victims' rights amendments,' and similar legislation has been introduced at the federal level."
491. Wayne Logan, "Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact in Capital Trials," 41 Arizona Law Review (1999), 144, note 4.
492. See also Maureen McLoed, "Victim Participation at Sentencing," 22 Criminal Law Bulletin (1986), 501
493. Frank Carrington and George Nicholson, "The Victims' Movement: An Idea Whose Time Has Come," 11 Pepperdine Law Review (1984), 1
494. Lynne Henderson, "The Wrongs of Victims' Rights," 37 Stanford Law Review (1985), 937.
495. See Paul Cassell and Robert F. Hoyt, "The Tale of Victims-Rights," Legal Times (12/23 and 12/30, 1996), http://www.law.utah.edu/faculty/websites/cassellp/Tale_of_Victims_Rights.htm.
496. See Sykes, A Nation of Victims.
497. Stuart Scheingold, Toska Olson, and Jana Pershing, "Sexual Violence, Victim Advocacy, and Republican Criminology: Washington State's Community Protection Act," 28 Law & Society Review (1994), 734, 736.
498. Zur, "Psychology of Victimhood: Reflections on a Culture of Victims."
499. On the requirements of retributive justice, see Immanuel Kant, Metaphysical Elements of Justice, John Ladd, trans. (Indianapolis: Bobbs-Merrill, 1965).
500. See also Jeffrie G. Murphy, Retribution, Justice, and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland, and Boston: D. Reidel Publishing Company, 1979)
501. Marvin Henberg, Retribution: Evil for Evil in Ethics, Law, and Literature (Philadelphia: Temple University Press, 1990).
502. Danielle Allen, "Democratic Disease: Of Anger and the Troubling Nature of Punishment," in The Passions of Law, Susan Bandes, ed. (New York: New York University Press, 1999), 191, 204.
503. Wendy Kaminer, It's All the Rage: Crime and Culture (Reading, MA: Addison-Wesley, 1995).
504. "To a victim," Kaminer writes, "the notion that crimes are committed against society, making the community the injured party, can seem both bizarre and insulting: it can make them feel invisible, unavenged, and unprotected." p. 75.
505. Also Angela Harris, "The Jurisprudence of Victimhood," 1991 Supreme Court Review (1991), 77.
506. For a discussion of rituals of grieving, see Lou Taylor, Mourning Dress: A Costume and Social History (London: Allen and Unwin, 1983).
507. Terry Aladjem, "Vengeance and Democratic Justice: American Culture and the Limits of Punishment," unpublished manuscript, 1992, 3.
508. Quoted in Jonathan Simon, Governing through Crime: The War on Crime and the Transformation of American Governance, 1960-2000 (New York: Oxford University Press, forthcoming), chapter 3, 5-7, 27.
509. We become what Berlant calls "infantile citizens." In this version of citizenship, "a citizen is defined as a person traumatized by some aspect of life in the United States. Portraits and stories of citizen-victims . . . now permeate the political public sphere."
510. See Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (Durham: Duke University Press, 1997).
511. Katie Walsh, "Clemency Hearings Unjust to Victims' Families," Columbia Chronicle Online, http://www.ccchronicle.com/back/2002-10-21/opinions4.html.
512. For a useful analysis of the role of the families of the victims in those hearings, see Jonathan Simon, "Fearless Speech in the Killing State: The Power of Capital Crime Victim Speech," 82 North Carolina Law Review (2004), 1377.
513. As Jennifer Culbert puts it, in our era, "[t]he pain and suffering expressed by the murder victim's survivors can serve as an absolute in a society in which every other kind of claim is subject to contestation, doubt, and criticism."
514. See Jennifer Culbert, "The Sacred Name of Pain: The Role of Victim Impact Evidence in Death Penalty Sentencing Decisions," in Pain, Death, and the Law, Austin Sarat, ed. (Ann Arbor: University of Michigan Press, 2001), 104.
515. In addition to their role as anchors of social values, Scheingold, Olson, and Pershing suggest that victims also pursue instrumental goals that may make them less not more punitive in their attitudes. See "Sexual Violence, Victim Advocacy, and Republican Criminology," 736.
516. Peter Fitzpatrick, "Life, Death, and the Law-and Why Capital Punishment Is Legally Insupportable," 47 Cleveland State Law Review (1999), 483, 484, 486, 487.
517. Martha Minow "Surviving Victim Talk," 40 UCLA Law Review (1993), 1432.
518. Stafano Crosara, "I'm Against the Death Penalty," Trieste Contemporanea (November 2000), at http://www.tscont.ts.it/pag20-e.htm.
519. Culbert, "The Sacred Name," 104-5.
520. See Jacques Derrida, "Part I: Forgiving," in Questioning God, eds. John Caputo et al. (Bloomington: Indiana University Press, 2001), 34.
521. Jacques Derrida, "The Century and the Pardon," Le Mondes des Debats, no. 9 (December 1999), 9, 16, at http://fixion.sytes.net/pardonEng.htm.
522. As the cultural critic Lauren Berlant notes, the result is to produce a "special form of tyranny that makes citizens like children, infantilized, passive, and over dependent on the 'immense and tutelary power' of the state." Berlant, The Queen of American, 27.
523. See the discussion of Ohio Adult Parole Authority v. Woodard, 523 U.S. (1998), 272, in chapter 3 of this book.
524. "In the absence of an overarching principle or absolute to which to refer for sense and guidance in a multicultural, morally pluralist society, the survivor is embraced as a unique figure with the power to liberate people from the chains of a well-meaning but paralyzing relativism." See Culbert, "The Sacred Name," 134.
525. Culbert contends that it is "counter-intuitive to think of a subjective experience like pain as establishing a publicly valid authority." "The Body in Payne," 8.
526. At this point Ryan associates his act with a "political" conception of clemency described by Hamilton. See Alexander Hamilton, The Federalist No. 74 (New York: The Modern Library, 1956), 483.
527. Other examples of the political conception include President Gerald Ford's pardon of Richard Nixon. See President Gerald R. Ford's Remarks on Signing a Proclamation Granting Pardon to Richard Nixon (September 8, 1974), at http://www.ford.utexas.edu/library/speeches/740060.htm.
528. For another example, see President Carter's pardon of Vietnam War resisters in 1977: Proclamation 4483-granting pardon for violations of the Selective Service Act (August 4, 1964, to March 28, 1973), at http://www.archives.gov/federal_register/codification/proclamations/04483.html.
529. See Kaminer, It's All the Rage, 84.
530. Kobil, "How to Grant Clemency in Unforgiving Times," 228.
531. See Ex Parte Garland, 71 U.S. (1866), 333, 371.
532. Also Ex Parte Grossman 267 US (1925), 87, 120-21.
533. McCleskey v. Kemp, 481 U.S. 279 (1987), 281.
534. For a useful analysis of the implications of this refusal for our understanding of narrative and rhetoric, see Patricia Ewick and Susan Silbey, "Subversive Stories, Hegemonic Tales: Toward a Sociology of Narrative," 29 Law and Society Review (1995), 197, 215-16.
535. Ryan's journey is chronicled in a documentary film entitled Deadline, directed by Katy Chevigny and Kirsten Johnson (Big Mouth Productions, 2004). Deadline was broadcast on NBC's Dateline on July 30, 2004.
536. Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001), chapter 9.
537. Kobil, "How to Grant Clemency in Unforgiving Times," 227-28, 240.
538. Derrida, "The Century and the Pardon," 9.
539. "Energy in the Executive is a leading character in the definition of good government." Federalist No. 70, 454.
540. Kobil, "How to Grant Clemency in Unforgiving Times," 227, 228, 240.
541. See Robert Nozick, Philosophical Explanations (Cambridge, MA: Harvard University Press, 1981).
542. See also Hugo Adam Bedau, "Retribution and the Theory of Punishment," Journal of Philosophy 75 (1978), 601
543. John Cottingham, "Varieties of Retribution," Philosophical Quarterly 29 (1979), 241
544. Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970).
545. Nozick, Philosophical Explanations, 366.
546. See Michael Davis, "Harm and Retribution," in Punishment, A. John Simmons et al., eds. (Princeton: Princeton University Press, 1995), 191.
547. Kant says of the law of retribution that "any undeserved evil that you inflict on someone else among the people is one that you do to yourself." Metaphysical Elements of Justice, 101-2.
548. Nozick, Philosophical Explanations, 367.
549. William Miller, "Clint Eastwood and Equity: Popular Culture's Theory of Revenge," in Law in the Domains of Culture, Austin Sarat and Thomas R. Kearns, eds. (Ann Arbor: University of Michigan Press, 1998), 167.
550. Nozick, Philosophical Explanations, 368.
551. Timothy Kaufman-Osborn, From Noose to Needle: Capital Punishment and the Late Liberal State (Ann Arbor: University of Michigan Press, 2002), 172-73, 208-9.
552. William Connolly, "The Will, Capital Punishment, and Cultural War," in The Killing State: Capital Punishment in Law, Politics, and Culture (New York: Oxford, 1999), 200.
553. Seneca, Moral and Political Essays, John Cooper and J. F. Procope, eds. and trans. (Cambridge: Cambridge University Press), 132.
554. Alexander Hamilton, "Federalist 74," The Federalist: A Commentary on the Constitution of the United States (New York: The Modern Library, 1956), 482.
555. Hamilton, "Federalist 74," 482.
556. Marvin Scott and Stanford Lyman, "Accounts," American Sociological Review 33 (1968), 46.
557. Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France (Stanford: Stanford University Press, 1987), 4.
558. Edmund G. (Pat) Brown with Dick Adler, Public Justice, Private Mercy: A Governor's Education on Death Row (New York: Weidenfeld & Nicolson, 1989).
559. See appendix A.
560. See, for example, Averell Harriman, "Mercy Is a Lonely Business," Saturday Evening Post (March 28, 1958), 24-25, 83-84. "Sitting alone in his office with the ancient, awesome power of clemency," Harriman writes, "the governor must take on the most difficult task of all: he must become the conscience of the people of his state."
561. Pat Brown, Public Justice, Private Mercy, 105, 163.
562. Jack Lessenberry, "Book Review: DiSalle's True Potential Unfulfilled," Toledo Blade (May 16, 2004), http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20040516/ART02/405160312.
563. Michael V. DiSalle with Lawrence G. Blochman, The Power of Life or Death (New York: Random House, 1965), 6.
564. DiSalle with Blochman, The Power of Life or Death, 27, 39.
565. James Whitman illustrates these concerns when he describes what he calls a "characteristically American . . . anxiety" concerning executive grants of mercy, "that pardons were being used to benefit inevitably inegalitarian." See James Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (New York: Oxford University Press, 2003), 184.
566. Furman v. Georgia, 408 U.S. 238 (1972).
567. Gregg v. Georgia, 428 U.S. 153, 199, note 50 [1976])
568. Hamilton, The Federalist 74, 482.
569. Korematsu v. United States, 248.