NCJ Number
79605
Journal
Yale Law Journal Volume: 90 Issue: 4 Dated: (March 1981) Pages: 889-911
Date Published
1981
Length
23 pages
Annotation
Issues involved in ensuring due process protection in capital clemency proceedings are discussed.
Abstract
The U.S. Supreme Court has surrounded the death penalty with special procedural protections for the accused. The difference between death and all other punishments has caused the Supreme Court to recognize a 'corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.' Two general procedural values have emerged in the Court's new capital punishment doctrine: the importance of individualized sentencing and the need to minimize informational errors. Clemency, no less than other decisions in the capital punishment process, should involve these two procedural values. Procedural inadequacies in the current system suggest, however, that clemency decisions may be based on seriously incomplete views of a petitioner's case. The clemency authority should permit applicants, their supporters, the State authorities, and the public at large to comment on a clemency petition. Because of the breadth of factors involved in a clemency application, participants could urge granting or denying clemency for any reason. To protect the accuracy of the process, any person should also be permitted to comment on other submissions to the clemency authority, and all comments should be public so factual errors or distortions might be challenged. The State should provide adequate resources to indigent applicants for the preparation of their presentations. At a minimum, the State should guarantee the assistance of counsel. All applicants should be entitled to a personal appearance before the decisionmaker. It is the responsibility of the courts to see that the clemency process contains due process protections. A total of 109 footnotes are listed.