Vol. 12 No. 10 (October 2002)
JUSTICE DENIED: CLEMENCY APPEALS IN DEATH PENALTY CASES, by Cathleen Burnett. Boston, Massachusetts: Northeastern University Press, 2002. 251 pp. Cloth $47.50. ISBN: 1-55553-521-6. Paper $18.95. ISBN: 1-55553-520-8.
Reviewed by John Paul Ryan, The Education, Public Policy, and Marketing Group, Email: email@example.com.
There is a substantial body of literature on capital punishment, to which political scientists, sociologists, and law professors, among others, have contributed. Frames of analysis include moral and philosophical arguments about the appropriateness of the death penalty, empirical analyses of the deterrent value of the death penalty, case studies of wrongful convictions, historical and comparative treatments that highlight changes in the use of the death penalty in the United States and around the world, and doctrinal analyses of the many U.S. Supreme Court decisions on the subject.
Cathleen Burnett’s JUSTICE DENIED: CLEMENCY APPEALS IN DEATH PENALTY CASES seeks to expand our understanding of the gubernatorial clemency procedure in death penalty cases, an area of modest research interest to date, especially among social scientists. An associate professor of sociology and criminal justice at the University of Missouri-Kansas City (and a sociologist by training), Burnett studied 50 clemency petitions filed in death penalty cases in Missouri between 1977 and 2000. The convenient choice of Missouri resulted in a relatively large database, since the state’s 58 executions trail only Texas and Virginia since 1976; indeed, almost 10% of all post-1976 executions have taken place in Missouri. Burnett has organized the book according to the progression of a case through the criminal justice system, by using excerpts from about twenty of these clemency petitions as a window through which to explore questionable practices or judgments by police, prosecutors, trial and appellate judges, and the governor, in death penalty cases.
She finds that the petitions raise a variety of claims of police misconduct, including coercion of a confession, rewards to witnesses for cooperation, false testimony by police, and denial of an attorney during police interrogation. Claims of prosecutorial misconduct are much more frequent, particularly inappropriate argument to the jury (24% of the petitions) and the withholding of exculpatory evidence (18%). Claims of defense lawyer ineffectiveness are even more frequent, notably the failure to investigate key aspects of the case (58%), but also, the lack of capital trial experience (24%) and conflicts of interest (12%). By comparison, claims of judicial error at the trial stage are scattered and infrequent; the most common complaint (raised in three cases) was the refusal to give a particular instruction to the jury. Of course, many of the petitions raise multiple issues across a variety of actors and agencies.
Within each chapter Burnett uses a similar structure and logic of analysis. She begins by assessing the “promise” of the institutional role, discussing standards of appropriate police, prosecutor, defense attorney, and judicial conduct and codes of ethics, such as those developed by the American Bar Association, the National District Attorneys Association, and other groups. She next addresses the “reality,” by reviewing some of the empirical literature that documents shortcomings by police, prosecutors, defense attorneys and judges in other locales. At the core of most chapters are lengthy excerpts from a few clemency petitions that raise claims of misconduct, error, and/or defense lawyer ineffectiveness.
It is not until late in the book that Burnett addresses the role of the governor in clemency proceedings. Perhaps that is because there is not much to talk about. Governors of Missouri, Democrats and Republicans alike, routinely rejected clemency appeals. In the fifty cases studied, there were only two commutations and one stay of execution granted. The current U.S. Attorney General, John Ashcroft, granted no commutations during his eight year tenure as governor of Missouri, and the late Mel Carnahan, a Democrat, granted only two commutations. Burnett attributes this to the political climate in which governors find themselves, including strong public support for the death penalty and the vagaries of election politics. But this doesn’t explain why Missouri, in particular, has so few commutations compared with other states, a piece of data that Burnett cites only in passing. Nor does Burnett provide any interviews with current or past state officials (e.g., the legal staff or other aides of governors), which might offer some additional context and depth to the analysis of these clemency proceedings.
Social scientists hoping to find a sophisticated empirical analysis of clemency petitions will be disappointed by this book. Burnett states in the preface that the book’s purpose is “to raise the awareness of the public about the defense of death row prisoners facing execution, to recognize that their claims of error represent systemic flaws rather than unique occurrences, and to suggest policy recommendations to restore integrity in the administration of justice” (xv). A stated opponent of the death penalty, Burnett uses the clemency petitions as a tool in what amounts to a legal brief against capital punishment. The petitions raise many questions of potential error in capital cases, but even Burnett acknowledges that the petitions are “partisan.” It is hard to assess the validity of her overall claim, “JUSTICE DENIED,” when she makes no effort in this book to support her claim that the evidence provided in the petitions is “factually verifiable” (xiv). Indeed, I think her uncertainty about whether she is writing a scholarly book about clemency appeals or an investigative critique of capital cases in Missouri undermines the focus, and the value, of the book.
The juxtaposition of “promise” and “reality” to guide the analysis also troubles me. In some respects, Burnett’s analysis both trails and yet misunderstands the lessons of legal realism. Yes, there is a gap between “law on the books” and “law-in-action.” But one of the overriding lessons of the vast social science literature on criminal justice is that key actors inevitably must and do use discretion to do their jobs. Is it “prosecutorial misconduct” to reward witnesses (i.e., co-defendants) for testimony against the accused or is this a commonly-accepted form of plea bargaining? Is it “judicial misconduct” to allow or refuse certain evidence, testimony, or jury instructions, or is this judicial discretion (subject to appellate review)? Burnett relies too heavily on model rules of behavior for the “promise” of justice. In retrospect, it is easy to conclude that some of the actors used poor judgment in the investigation of individual cases, but did they commit ethical or criminal violations, as the word “misconduct” implies? The more appropriate question might be: Did the police, prosecutors, or judges commit “harmful error”? Based upon the reviews provided by the appellate courts in these cases, the answer would seem to be “no,” although Burnett finds occasional support from one or more dissenting justices.
Burnett’s analysis of the issues and actors is frequently cursory and short. Indeed, the lengthy excerpts from the clemency petitions typically comprise more than half of the text of each chapter, often as much as three-fourths. This suggests to the reader that the data (the petitions) speak for themselves, but in fact readers might draw very different conclusions from the wide range of arguments offered. Some of the appeals for clemency retry the facts of the case, claiming the innocence of the convict. Other petitions argue that the convict is guilty of a lesser charge, and still others offer information about the background of the convict in an effort to mitigate an acknowledged killing. The lengthy excerpts often interfere with sustained analysis, yet they are too short (and unaccompanied by other evidence) if the primary purpose is the re-investigation of individual cases.
One of the most common critiques of the death penalty is that its use is arbitrary – i.e., there is no consistency in the decisions about who should be sentenced to death across, or even within, jurisdictions. Burnett addresses this important issue in a substantial chapter on the role of the appellate courts. In fully 30% of the clemency petitions, convicts raise the argument that the capital sentence is not proportional to the crime and/or to the sentences received for similar crimes (killings) by other perpetrators. Here, Burnett does a good job examining proportionality review practices by the Missouri Supreme Court, as well as the reduction in the efficacy of the habeas review by federal courts, especially in the aftermath of the Antiterrorism and Effective Death Penalty Act of 1996 and a series of Supreme Court decisions in recent years. Still, Burnett does not address the sentencing role of the jury in contributing to a lack of proportionality, preferring instead to criticize a Missouri law that permits trial judges to decide upon life or death when the jury is hung as to sentence.
The reforms that Burnett recommends in her closing chapter break little new ground. Like many other scholars, she points to the need for a higher quality of representation by defense attorneys in both the trial and postconviction stages, as well as more adequate state funding to achieve this result. Regarding the clemency decision itself, she recommends a more transparent process, including public hearings by the Board of Probation and Parole at which defendants could attend, be represented by counsel, present evidence, and confront witnesses. Of course, the families of victims and victims’ groups might also be mobilized to participate and testify in public hearings, leading to more extensive media coverage and, ultimately, to a political environment even less conducive to the granting of clemency.
In the final analysis, JUSTICE DENIED offers a window into a lightly-researched but increasingly important area of capital punishment. Indeed, as of this writing outgoing Illinois Governor George Ryan, who instituted a moratorium two years ago on the state’s use of the death penalty, will soon decide whether to commute the death sentences of 140 inmates. Burnett’s book has some potential use in the classroom – particularly undergraduate courses in the politics of criminal justice or capital punishment, because it has a clear thesis, is well-organized, and is well-written. The book might also serve as a good counterpoint in classroom discussions where most students are politically conservative and pro-death penalty. From a scholarly point of view, however, the book’s value is more limited. How much light Burnett has shed on the clemency process, especially outside of Missouri, is debatable; in my view, the book’s shortcomings here outweigh its strengths.
Copyright 2002 by the author, John Paul Ryan.