Governors find leeway in granting clemency

Daniels, Kernan cited solid reasons for mercy
By Lesley Stedman Weidenbener
The Courier-Journal

INDIANAPOLIS -- For nearly five decades, no Indiana governor chose to spare the life of anyone on death row.

The state executed a dozen inmates during that period, which included a brief span when the U.S. Supreme Court put a moratorium on capital punishment.

But in the past 13 months, two governors have spared three men from death.

One inmate had an IQ just above the threshold of mental retardation and one's guilt was questioned by some because of evidence that never reached a court.

The third -- Arthur Baird, whose death sentence was commuted by Gov. Mitch Daniels late last month -- has been determined by doctors to be mentally ill and delusional. Life without parole wasn't an option at the time of his trial.

A decade ago, decisions to commute death sentences might have seemed politically difficult, if not impossible, according to many legal experts.

But today, governors seem to have more latitude to spare the lives of some condemned killers and execute others without incurring the wrath of voters, large numbers of whom still support capital punishment.

"People are more willing to consider the possibility of errors" or other circumstances that might warrant commuting a death sentence, said Marla Sandys, an associate professor of criminal justice at Indiana University.

"Governors are now able to explain those better. They can say that under most circumstances, they support the death penalty, but in this situation they are making an exception."

According to political and legal experts, several factors have led to the change:

Errors in death-penalty cases have been uncovered across the country, including some in which a defendant was found to be innocent and others in which courts determined that inmates did not have adequate legal representation.

Emerging research about mental illness and mental retardation has led to more debate about executions, even among some who support the penalty.

Dropping crime rates have made Americans feel safer, which has led to a decline in the intensity of some people's feelings about the penalty.

"It used to be simple: The more you executed, the more the public loved it," said Phoebe Ellsworth, who has studied public opinion and the death penalty as a professor of law and psychology at the University of Michigan.

"Now the public knows about wrongful executions, and they want a leader who is tough but not bloodthirsty. You don't want to look as though you're executing people casually."

According to Gallup polls, support for the death penalty reached its peak in 1994, when 80 percent of Americans favored it for people convicted of murder. Over the next decade -- as evidence of some wrongful convictions emerged -- support dropped to 71 percent.

"Part of the passion that drove people to favor the death penalty was this fear that crime was completely out of control and people getting away with murder," Ellsworth said. "Some of the juice has drained away from that" as the crime rate has fallen.

But a poll released in May showed support back up to 74 percent, its highest point in 10 years.

Clark County Prosecutor Steve Stewart, a proponent of the death penalty in some cases, said media saturation about anti-death-penalty efforts and cases with wrongful convictions have led to changes in public perception of executions.

Stewart said he doesn't believe the public supports governors when they commute death sentences that have been imposed by juries and upheld by higher courts. "They swallow it because of the way it's publicized," he said.

Daniels and former Gov. Joe Kernan said politics did not play a part in their decisions to commute the sentences of condemned prisoners.

Kernan spared the life of Darnell Williams, who had killed a Gary couple, while he was running against Daniels. He said Williams was borderline mentally retarded, and the man with whom he committed the crime had not been sentenced to death.

Kernan said he had many advisers who told him that it would hurt his campaign if he granted Williams clemency.

But the Democrat said the decision "was going to be on the basis of what I thought was right."

"I don't think in retrospect that it had much of a political impact one way or the other," Kernan said.

In the last week of his term, after he'd lost the election, Kernan commuted the sentence of Michael Daniels, who also has a low IQ. Kernan said evidence that cast doubt on Michael Daniels' guilt never was presented in court, and he called for a review of the state's death-penalty system.

Since Gov. Mitch Daniels took office in January, four men have been executed and only Baird has been spared.

"I'm just going to look at these case by case," Gov. Daniels said.

A top Daniels adviser, Mark Lubbers, said that although support for the death penalty has remained strong, it is a much more reasoned support than 20 years ago, opening the door to more rational reviews of clemency requests.

"In the last decade, there's been a lot more public dialogue about the efficacy and morality of the death penalty," Lubbers said. "And that has made it easier for governors, when appropriate, to decide to commute a sentence."

Still, clemency is rarely granted, and in most states, far more death-row inmates are executed than spared.

In the past five years, governors have granted clemency 187 times, but the majority of them came in 2003, when then-Illinois Gov. George Ryan commuted the death sentences of 167 inmates, citing a flawed judicial system, and pardoned four more inmates.

The remaining 20 have come from 10 states, including Kentucky, where former Gov. Paul Patton commuted Kevin Stanford's death sentence to life in prison because he was only 17 when he raped, sodomized, kidnapped and shot 20-year-old Louisville gas-station attendant Baerbel Poore.

Shortly thereafter, the U.S. Supreme Court ruled that states cannot execute defendants whose crimes were committed when they were juveniles. The court also has carved out an exception for people who are mentally retarded.

In many ways, society is putting restrictions on the death penalty, said Richard Dieter, executive director of the Death Penalty Information Center. "But we are not going to get rid of the possibility of executing people," he said.

The number of people sentenced to death annually has dropped by 50 percent since 1999, Dieter said, and the number of individuals on death row has declined.

Also, polls show that when given a choice, about 40 percent of Americans would choose life in prison without parole rather than the death penalty for criminals.

"No one wants to see an innocent person executed, whichever side of the political aisle you're on," Dieter said.

The issues remain difficult, though. Stewart said that most people believe defendants who are mentally ill probably shouldn't be executed. But the definition of mental illness is so broad that it would encompass too many people, he said.

"I haven't met a murderer yet who wasn't mentally ill in some respect," said Stewart, a 20-year veteran of prosecutions.

Dieter said that psychiatrists might be forced to come up with a more narrow category of mental illness that would make the death penalty appropriate for a person who fits that definition, and then state legislatures and the courts would decide how or whether that definition should be applied.

None of the 38 states that have the death penalty prohibit it for people who are mentally ill.

Those are just the kinds of debates that enable governors to be more open to clemency, Ellsworth said.

"It used to be that your death-penalty attitude as a public official is something that identified you politically," she said. "You could not get elected to one of the highest offices if you openly opposed the death penalty.

"Now that's less true. It's an attitude like other attitudes. It doesn't define your whole political approach anymore."