Vanderbilt Law Review

First Page



Since scarcely a decade after Furman v. Georgia,' the Supreme Court has struggled to avoid review of death penalty cases by narrowing the grounds defendants can use to challenge their sentences, as well as the procedures they can use to make those challenges. The Court supports its jurisprudence and the deregulation of death with an important but unexamined assumption: whatever shortcomings exist in the administration of the death penalty, ultimately injustice can and will be avoided by the exercise of the commutation power at the state level.

This Article argues that such an assumption is unwarranted. By substituting the fantasy of commutation for meaningful appellate review, the Court has perpetuated a system in which capital convictions and sentences lack integrity, while capital defendants suffer injustice.

The Supreme Court's commutation jurisprudence has led to increased deregulation of death penalty decision making. It has delegated those decisions to states that are politically unable to deliver justice in death penalty cases. By doing so, the Court has abdicated its role as protector of powerless minorities. It has also made the imposition of a death penalty more likely. In eschewing constitutional limits and relying on the political process, the Court has sanctioned a process in which many people play a small role in death decisions, no one takes sole, personal responsibility for the decision, and the final decision makers are subject to strong political pressure.

Part II of this Article argues that, under current law, death penalty convictions and sentences are unreliable. The system produces wrongful convictions and maldistribution because it is administered unfairly at every level. Further, there is serious doubt that the penalty can ever be administered fairly. Reduced access to habeas corpus review makes these problems more difficult to correct. All of these factors make commutation essential to achieving justice in the capital punishment system. It is often the only mechanism available to correct unjust results.

Part III examines the potential benefits of a meaningful commutation process and proceeds to analyze the Supreme Court's commutation cases. The Court clearly looks at commutation as if the potential benefits were real and as if commutation actually corrects injustices.

Part IV corrects the Supreme Court's rosy picture by looking at commutation as it operates in reality. The fact is that the commutation power is virtually dead because of the belief that "super due process" has virtually eliminated error and because the political consequences of granting commutations are too great. The Article uses a real commutation petition-that of William Andrews-to demonstrate reality's failure to live up to the commutation ideal.

Part V explores the implications of the Court's death penalty and commutation jurisprudence. The Court's view of commutation advances the deregulation of death by delegating power to non-functioning state commutation systems. Instead of providing meaningful review, the Court fosters a bureaucratic process under which death decisions cannot be attributed to any decision maker. By doing so, the Court has failed to protect the powerless on death row.

This Article's focus is the commutation of death sentences. "Commutation" is used to denote a reduction of a sentence to a lesser one. In the capital punishment context, it means reducing a death sentence to life imprisonment. "Clemency," on the other hand, denotes "leniency or mercy in the exercise of authority or power." Commutation is a more limited form of clemency but shares many attributes of its parent power. The terms "commutation" and "clemency" are used interchangeably in this Article to mean a reduction of sentence, unless otherwise noted.