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Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure
Open accessAbstract
Clemency is an extrajudicial measure intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant characteristics, political factors, and clemency's structure on clemency decisions. The results suggest that although a defendant's race and ethnicity did not influence clemency, gender did play a role, as women were far more likely than their male counterparts to receive clemency. Analyses of political and structural factors point in different directions. Political factors such as the timing of gubernatorial and presidential elections and a governor's lame-duck status did not systematically influence clemency. However, how states structure clemency authority did make a difference. Clemency grants were more likely in states that vest authority in administrative boards than in states that vest authority in the governor. Regionality and time were also important as clemency grants were less likely in southern states and declined after 1984. Overall, these mixed results contribute to a critique that clemency decisions are arbitrary and inconsistent. Thus, important questions regarding fairness that plague earlier aspects of the death penalty process persist to its final stage.
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“there has been a sharp trend toward declining grants of clemency applications (see Drinan 2012, Heise 2003).”
From Wrongful Convictions (2020) · cites this paper as Heise 2003
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Research works printed but not linked: 1
- Coleen E. Klasmeier, Towards a New Understanding of Capital Clemency and Procedural Due Process, 75 B.U. L. Rev. 1507, 1513-14 (1995). For a discussion of how the 1990 gubernatorial contests in Texas, California, and Florida offer glimpses into the new politics of death, see, for example, Richard Lacayo, The Politics of Life and Death, Time, Apr. 2, 1990, at 18; see also Lucy Howard & Ned Zeman, 1-800-Death, Newsweek, July 8, 1991, at 6 (reporting that a Nebraska senator established toll-free number so death penalty boosters could register support for the execution of Harold Otey). 237 Of the 776 defendants in the dataset, 178 (22.9%) received clemency. 238 See Am. Civil Liberties Union, Geography Determines Death Sentences, at http://www.aclu.org/news/newsprint.cfm?ID=98008&c=62 (Mar. 8, 2002) (on file with the Virginia Law Review Association) (noting that of the more than 700 executions during the last twenty-five years, Texas and Virginia have "accounted for almost one-half"). But see
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Garrett, B. L. (2020) · Annual Review of Criminology · doi:10.1146/annurev-criminol-011518-024739 · Cited by 35
Metadata
- Authors
- Heise, M.
- Affiliations
- Cornell University (US)
- Corresponding author
- Heise, Michael
- ORCID
- Heise, Michael
- Venue
- Virginia Law Review
- Publisher
- JSTOR
- Published
- 2003-04
- Volume
- 89
- Issue
- 2
- Pages
- 239
- ISSN
- 0042-6601 (ISSN-L)
- OpenAlex
- W2137467486
- Cited by
- 46
- References
- 0
- Citations by year
- 2026: 2 · 2024: 2 · 2023: 1 · 2022: 1 · 2020: 1 · 2019: 21 · 2018: 1 · 2017: 3 · 2016: 5 · 2014: 1 · 2013: 1 · 2012: 1
- FWCI
- 0.00
- Type
- journal article
- Language
- en
- Open access
- green
- escholarship.org
- Locations
- Virginia Law Review (publishedVersion)
- eScholarship (California Digital Library) (submittedVersion)
- Scholarship @ Cornell Law (Cornell University) (submittedVersion)
- SSRN Electronic Journal (submittedVersion)
- Topics
- Social Sciences › Sociology and Political Science › Torture, Ethics, and Law
- Social Sciences › Sociology and Political Science › Criminal Justice and Corrections Analysis
- Social Sciences › Law › Criminal Law and Policy
- Keywords
- clemency, death penalty, death row, gender differences, racial disparities, gubernatorial elections, political factors, administrative board, Southern United States, fairness in criminal justice
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