New report highlights the absence of mercy when clemency is considered in capital cases

Last Friday, officials in Utah denied clemency to Taberon Honie, who is scheduled to be executed on Aug. 8 for the stabbing death of his girlfriend’s mother in 1998. As the Associated Press reported, the decision “was announced in a one-paragraph notice from Scott Stephenson, chair of the Utah Board of Pardons and Parole. ‘After carefully reviewing all submitted information and considering all arguments from the parties, the board does not find sufficient cause to commute Mr. Honie’s death sentence.’”

Honie had asked the board to commute his sentence by claiming that he is “not the same person he was when he killed the woman after a day of drinking and using drugs.” He told them, “I’ve shown I can exist in prison. I’m not a threat to the public. I’m not a threat to anyone.”

According to a new report from the Death Penalty Information Center, “Mr. Honie’s legal team shared evidence about his traumatic upbringing on the Hopi reservation, in a home without running water or electricity. Mr. Honie’s parents… suffered from alcoholism as adults and fought constantly, neglecting Mr. Honie and his siblings and leaving them to wander the reservation alone. Mr. Honie first tried alcohol at age 5 and experienced several serious head injuries as a child.” 

Honie asked the Board of Pardons and Paroles to spare his life so he could continue to be a helpful presence “for his mother and his daughter, who is in recovery for substance abuse.”

They were unpersuaded.

A new Death Penalty Information Center study highlights the reasons and arguments that clemency boards and governors have found persuasive when considering commutations or pardons in capital cases. That report underscores why Honie was unsuccessful.

It found that clemency in capital cases is most often granted where there is evidence of disproportionate sentencing of different offenders who commit the same crime or of possible innocence. Neither was present in Honie’s case.

The Death Penalty Information Center report shines a light on the things that move decision-makers to exercise their vast discretion to grant clemency in capital cases. It also highlights the fact that those decisions are often driven not by a desire to right wrongs or to extend mercy to capital offenders. Instead, politics plays a key role.

As the report puts it, “Executive officials appeared more likely to grant clemency when they did not have to face voters; in places where executives had sole authority to grant clemency, 84.6% of individual clemency grants occurred when the executive was not up for reelection.”

Before looking more closely, let’s consider the history and contemporary status of clemency in capital cases.

Today, capital clemency is something of an endangered species. Few death row inmates are any more successful than Honie was in Utah.

This represents a radical shift from several decades ago when governors granted clemency in 20 to 25 percent of the death penalty cases they reviewed.

During the early to mid-20th century, many governors took a broad view of their clemency power and were not reluctant to use it in capital cases. As Terry Sandford, governor of North Carolina from 1961-1965, put it “The executive is charged with the exercise in the name of the people of an important attitude of a healthy society, that of mercy beyond the strict framework of the law…. It falls to the governor to blend mercy with justice, as best he can, involving human as well as legal considerations, in light of all circumstances after the passage of time, but before justice is allowed to overrun mercy.”

In 1986 Gov. Tony Anaya (D) of New Mexico, with just weeks left in office, commuted the death sentences of all five condemned men in his state. He called capital punishment “A false God that too many worship.”

He said, “I am dropping a pebble into a pond that will cause a ripple; a ripple which I pray will be joined in other ponds across this great country; ripples, that coming together, will cause a rising tide.”

Anaya’s hope has not been realized.

Take Florida, for example. In the four decades from 1924 to 1966, Florida’s governors commuted 23 percent of death sentences that they were asked to consider. Since 1976, capital clemency has been granted only six times in Florida, in each case by Gov. Bob Graham (D). This is the case even though Florida leads the nation when it comes to death row exonerations.

The last commutation Graham granted was in 1983 to Jesse Rutledge. Graham did so because of doubts about whether Rutledge was guilty of the crime for which he was sentenced to die.

An American Bar Association examination of capital clemency in Florida notes that “Between Governor Graham’s last grant of clemency in 1983 and (2000)…161 death row prisoners had petitioned various governors and the board for clemency. No petitions were granted.”

But the rarity of capital clemency in today’s world is not just a Southern phenomenon. All over the country, governors have rejected appeals from the pope, other religious leaders, former prosecutors, and even judges and jurors to spare the lives of people sentenced to death.

Exceptions have occurred when abolitionist governors decide to empty death row en masse, as occurred in Oregon in 2022 when Gov. Kate Brown announced that she was commuting the sentences of all 17 prisoners on her state’s death row. But hers were the only grants of clemency for any death row inmates that year.

Only one occurred in 2023 when Maryland Gov. Larry Hogan granted John Huffington a full pardon, stating that evidence conclusively showed that his “convictions were in error.” Maryland had previously stopped using the death penalty in any new cases.

As it turns out, reasons like Hogan’s were the most common cited ones for grants of capital clemency from 1977 to 2023. As the report notes, “The most common category of clemency grants was ‘comparative culpability-excessive sentence,’ which included cases where the official felt that the prisoner had been punished more harshly than similarly culpable people, such as co-conspirators in the crime or other prisoners in the state.” That factor “was present in nearly 40 percent of cases and illustrates the unpredictability and arbitrariness of the death penalty process.”

The next most important factor was “possible innocence,” which was cited in about one-third of cases in which governors granted clemency. The report points out that “this could be viewed as a sign that executives are using the clemency ‘fail safe’ to spare the innocent in the eleventh hour,” but adds that this implies that many innocent defendants wrongly spent years or even decades in prison.

Those clemency grants exemplify what Kathleen Dean Moore has called a “retributive theory” of clemency. Governors and clemency boards are most often moved to use clemency to correct miscarriages of justice.

They accept Moore’s view that “the only good and sufficient reason for pardoning a felon is that justice is better served by pardoning than by punishing in that particular case.”

Such justice-based uses of clemency are also reflected in the fact that “concerns about ineffective representation by defense attorneys and official misconduct each appeared in about one-fifth of clemency grants. The misconduct category also included cases with irregularities in the legal process that created unfairness, such as prosecution witnesses recanting their testimony.”

According to the report, mercy-based factors, “such as intellectual disability, mental illness, youth, and traumatic upbringing” appeared in 28 percent of the clemency grants issued in capital cases over the last half-century.  

In the end, the report documents an evolution of the clemency process in capital cases into an error-correction mechanism and away from its function as what the Supreme Court once called “an act of grace.”

Error-correction is indeed valuable in a death penalty system so rife with error. But it should not exhaust the reasons for sparing someone’s life, which go beyond making sure that people get what they deserve. We would all be well served if clemency were more frequently used to ensure that justice is tempered with mercy even for people like Taberon Honie. 

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.