Clemency Comes Under Scrutiny

Senseless killings by paroled murderers constrain the political capacity for mercy

The Pennsylvania Law Weekly
January 11, 2010

The tragic murder of four police officers in Parkland, Wash., has created a fire-storm regarding the place of clemency in America's criminal justice system.

Maurice Clemmons walked into a coffee shop Nov. 29 where four Lakewood Police officers were working on laptop computers preparing for their upcoming shift. Without provocation or apparent motive, Clemmons gunned down the four police officers.

The shock of the senseless killings had barely set in when it was discovered that Clemmons had been sentenced to 108 years in an Arkansas prison and would not have been eligible for parole until 2015. He was a free man because Gov. Mike Huckabee commuted his sentence.

Huckabee was governor of Arkansas when Clemmons sought to have his sentence shortened. According to The Seattle Times, Clemmons wrote in his clemency application, "I succumbed to the peer pressure and the need I had to be accepted by other youth in my new environment and fell in with the wrong crowd and thus began a seven month crime spree which led me to prison." Clemmons also included in his petition that he came from "a very good Christian family" and "was raised much better than my actions speak."

Only time will tell if the maelstrom that erupted around Huckabee's commutation will have a chilling effect on the willingness of governors to grant clemency to violent offenders who have not completed lengthy sentences.

Clemency is a general term that encompasses a pardon, the forgiveness of a crime and the penalty associated with it; a commutation, the lessening of the penalty of the crime without forgiving the crime itself; and a reprieve, which is the temporary postponement of punishment.

Pennsylvania has experienced firsthand how a tragedy involving clemency can alter the political and criminal justice system landscape. In 1992, Reginald McFadden had served 24 years of a life sentence for murder. McFadden had sought a commutation and the Pennsylvania Board of Pardons recommended his release to Gov. Robert P. Casey. The board voted 4-1 in favor of McFadden's release. The sole dissenting vote was that of Attorney General Ernie Preate.

McFadden was released from prison and within two years he killed two people in New York. He is once again serving a life sentence.

McFadden's release had a significant impact on Pennsylvania. Lt. Gov. Mark Singel, who voted for McFadden's commutation as a member of the Board of Pardons. He was a candidate for governor when McFadden killed again. The Washington Post referred to Singel's campaign against Tom Ridge as "Willie Horton: part two."

Willie Horton was the lifer who was furloughed and committed a rape while Michael Dukakis was governor of Massachusetts. Horton's furlough was effectively used by President George H. W. Bush against Dukakis during the 1988 presidential campaign.

Ridge defeated Singel and moved quickly to change the Board of Pardon's procedure for recommending clemency for those serving life in prison or a death sentence. In 1997, an amendment to Pennsylvania's constitution was approved requiring a unanimous recommendation for clemency by the five-member Board of Pardons, for any petitioner serving life in prison or on death row.

What effect has the change in policy had on clemency? According to the New York Times, Gov. Milton Shapp, who served as Pennsylvania's governor from 1971 to 1978, granted clemency to 251 inmates serving life in prison. Ridge did not grant clemency to a single lifer. Gov. Mark Schweiker granted clemency to one lifer.

Gov. Edward G. Rendell has granted clemency to only two offenders serving life sentences. The most recent was last summer, when he commuted George Orlowski's life sentence. Early in Rendell's first term, the Board of Pardons sent him Orlowski's petition along with Michael Anderson's, whose life sentence was commuted in 2007. All in all, the Board of Pardons has recommended clemency for three lifers in the last 12 years. Since Attorney General Tom Corbett assumed office in 2005 no lifer has received a clemency recommendation by the Board of Pardons.

That is not to say that no one is receiving clemency in Pennsylvania. A 2006 investigation by the Pittsburgh Tribune-Review found that in the previous five years there were more than 2,900 applications for clemency filed with the Pennsylvania Board of Pardons. The board reviewed about 1,900 cases, and relief was granted in about a third of those filings. In most cases, clemency was granted for minor offenses, committed long ago by aged petitioners.

This past summer, U.S. District Judge A. Richard Caputo of the U.S. District Court for the Middle District of Pennsylvania gave some hope to many inmates serving life in prison even in light of the bleak history of clemency for lifers since 1997. Caputo ruled that applying the requirement for unanimous approval by the board to lifers sentenced prior to 1997 was an unconstitutional ex post facto law. This was the second time Caputo made such a finding. His decision in 2006 was overturned on appeal and remanded for further proceedings. The new decision opens the door to hundreds of lifers who were sentenced prior to 1997. Those petitioners would need only an affirmative vote from a majority of the Board of Pardons to put their petitions on the governor's desk. Judge Caputos' second ruling has also been appealed to the 3rd U.S. Circuit Court of Appeals.

Tyrone Werts and William Fultz were the first petitioners sentenced to life in prison prior to 1997 to appear before the Board of Pardons following Caputo's ruling. The board voted to delay any decision on the petitions.

Lt. Gov. Joe Scarnati, the board chairman, said that the board had little choice but to delay decisions on Werts and Fultz because of the uncertainty over which legal standard the board should apply. "We're not clear if we need three votes or a unanimous vote in order to pardon these two lifers. And to take a vote that may conflict with a court ruling weeks down the road, I think, would be inappropriate," he said.

Pennsylvania's "life-means-life" law, coupled with the near absence of clemency for those serving life sentences has far reaching implications. Pennsylvania has more than 4,000 inmates serving life in prison without the possibility of parole. Nearly 400 of those serving life sentences are inmates who committed their crimes as juveniles.

The purpose of executive clemency is to grant mercy where it is warranted, and to correct injustices that cannot, or are not, corrected by the judiciary. While clemency will not, and should not, be used to clear out death row or whittle away at the number of inmates serving life in prison, it is disconcerting that the need to show mercy or correct injustice was present in only three cases in 12 years.