Last night, I was watching the news too and following on CNN and Twitter whether Troy Davis would get executed or not. The case has been discussed online on various places and blogs. So why this post? Because something irritated me. Folks forgot that we have a separation of powers here. People asked some to do what they could not because they simply do not have to authority to do so and responded negatively on their inactivity.
A reprieve is not a stay of execution
There is a distinct difference between a reprieve and a stay of execution: a reprieve is an executive order to literally postpone the execution for study for a specified period. A stay of execution is a judicial order. The execution is unlawful during a certain period in which certain issues must be cleared.
Who grants what?
Whether the State Parole Board or the State Governor has authority to grant executive clemency differs per state. All have the following in common: there are no standardized laws (Coyne & Entzeroth, p.644 ev.)! Clemency procedures must include due process protections. A meaningful review of a clemency petition is a basic right when faced with the ultimate sentence of death. These due process protections should include a meaningful review by an independent authority with the power to investigate. The death row prisoner should always have the right to a hearing, to have competent legal representation, to present evidence and witnesses. They should also be able to challenge the decision makers when they show bias.
Daniel T. Kobil further suggests the following minimum standard issues to be part of a clemency procedure: whether a substantial doubt of guilt exists, the defendant’s age, mental capacities, mental retardation, intoxication at the time the crime was committed, the possible disproportionating of the sentence, race or gender discrimination, the motive for the crime, the fate of co-defendants, etc.
Which lawyers can do what?
Any lawyer besides the legal counsel can file Last Minute Appeals in favour of the death row prisoner facing execution with:
A: the trial judge on grounds of racial discrimination, improper jury instructions, ineffective assistance of counsel, etc.
B: the United States Supreme Court to challenge the execution method, the time the prisoner spent on death row, and if applicable issues concerning foreigners’ rights under International Treaty Law.
C: the State Supreme Court or State Appeals Court to challenge the mental capacity of the involved death row prisoner shortly before execution, new forensic methods that exonerate the death row prisoner, etc.
The executive decision makers
The Governor has Sole Authority to grant Clemency in the following 13 States: Alabama, New Jersey,Virginia, Missouri, California, New Mexico, Washington, Colorado, North Carolina, Wyoming, Kentucky, Oregon and South Carolina.
The Governor must have the Favourable Recommendation for Clemency from the State Board of Pardons & Paroles or the State Adult Parole Authority in the following 9 States: Arizona, Indiana, Oklahoma, Delaware, Louisiana, Pennsylvania, Florida,* Montana and Texas. Note: Florida’s Governor must have the recommendation of the board on which he or she sits.
After the Mandatory but Non-Binding Recommendation for Clemency from the State Board of Pardons & Paroles or the State Adult Parole Authority, the Governor has Sole Authority in the following 8 States: Arkansas, New Hampshire, Tennessee, Illinois, Ohio, Mississippi, Maryland and South Dakota.
The State Board of Pardons & Paroles or the State Adult Parole Authority has Sole Authority in the following 3 States: Connecticut, Georgia, and Idaho.
The Governor sits on the Clemency Board in the following 3 States: Nebraska, Nevada and Utah.
What could President Obama have done?
The President of the United States has Sole Authority to grant Clemency to Federal Death Row Prisoners only. The United States Constitution gives sole authority to its President to grant clemency in Article II, section 2, of the Constitution. It states that the President shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment. This article is thus interpreted that it includes the authority to grant commutations as well (see : James Madison, Alexander Hamilton & John Jay, The Federalist Papers, Penguin Classics, 1987, p. 34, p. 398 ev.)
President Ford’s pre-conviction pardon of then-President Nixon shows that the President may issue a pardon at any time, before or after a trial. The President’s federal powers can only be used when federal law was violated. This is why a President’s clemency cannot occur in death penalty cases since they mostly focus on state law.
And there you have it!
The US Supreme Court cannot give a reprieve because that was up to the Executive branch in the state of Georgia. President Obama could not have granted a stay of execution or granted clemency since it was outside his authority.
Source: Daniel T. Kobil, The Evolving Role of Clemency in Capital Cases, published in America’s Experiment with Capital Punishment, Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, Edited by James R. Acker, Robert M. Bohm and Charles S. Lanier, Carolina Academic Press, 1998, p. 542 ev.