# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة العليا بالولايات المتحدة الأمريكية >  An empirical examination of the factors associated with the commutation of state deat

## هيثم الفقى

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An empirical examination of the factors associated with the commutation of state death row prisoners' sentences between 1986 and 2005.

Commutation is usually a death row prisoner's last hope of evading his or her capital sentence. However, unlike many other stages of the death penalty process, little research focuses on the factors that affect decisions to commute or allow a death sentence to go forward, and that which has been conducted utilizes data which is now nearly a decade old. This paper seeks to examine personal and demographic factors associated with commutation decisions and to resolve inconsistent findings in the prior research. Using the statistical method of multiple logistic regression, this paper finds statistically significant disparities in the odds of commutation by *** (women have an eleven-fold increase in odds of commutation), race (nonwhite prisoners have twice the odds of commutation), geography (southern prisoners have less than one-fifth the odds of commutation), and education (college educated offenders have one-fifth the odds of commutation). After adjusting for other factors, this research does not find evidence that, across the run of cases, criminal history or severity significantly influence commutation decisions. This research, while unable to generate conclusions about any individual case, provides evidence that executives' commutation decisionmaking is driven more by personal characteristics--some of which are troubling--than by criminal culpability. 

I. BACKGROUND 

The King may pardon any felon: but it may be objected that if he pardon one felon, he may pardon all, to the damage of the commonwealth; and yet none will doubt but that is left to his wisdom ... And the wisdom and providence of the King is not to be disputed by the subject; for by intendment they cannot be severed from his person, and to argue ... that by his power he may do ill, is no argument for a subject. (1) A death row inmate's petition for clemency is ... a "unilateral hope." The defendant ... appeals for clemency as a matter of grace.... Under any analysis, the Governor's executive discretion need not be fettered by the types of procedural protections sought by respondent. (2) Separated by nearly four centuries, these, decisions bear striking similarity: the power to commute belongs to the executive and is generally beyond substantive review. In the United States, constraints on the power to commute are controlled by a fractured decision of the Supreme Court in Ohio Adult Parole Authority v. Woodard. (3) Four justices found essentially no judicial review of clemency decisions, deeming it instead an act of grace. (4) Three others joined Justice O'Connor and would review for minimal procedural safeguards, finding a due process violation if clemency was granted or refused, for example, by flip of a coin or if the prisoner was arbitrarily barred from whatever procedures the state had created. (5) Justice Stevens alone argued that the executive could not "ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency" (6) and that clemency procedures, if created, must meet "the most basic elements of fair procedure." (7) 

Lower courts generally have followed the O'Connor position and found commutation procedures to be acceptable so long as they are not so whimsical as a decision made by the flip of a coin (8) or with disregard for procedural requirements guaranteed by state law. (9) However, one court found that there is no liberty interest in a commutation, so changes to the clemency procedures cannot trigger a due process claim. (10) Several courts have found no right to present any particular information during clemency hearings. (11) Additionally, several courts have explicitly found that the substantive grounds for commutation are left to the sole discretion of the executive. (12) At least one court has suggested equal protection claims cannot be made in clemency proceedings, (13) which is troubling in light of this paper's finding that race and *** appear to be implicated in executive decision making about commutation. 
Though commutation is largely unregulated by the courts--or perhaps, because of this--there is a compelling need to consider the factors that influence commutation decisions. The Supreme Court has spoken of executive clemency as "the 'fail safe' in our criminal justice system." (14) At the same time, critics have denounced commutation as too arbitrarily and infrequently used. (15) This Note quantitatively examines those factors associated with contemporary com...
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