Clemency, Arnie, Tookie, and me

Your friendly environmental lawyer has been asked to weigh in on criminal law clemency in general and Tookie Williams in particular. Let's go!

Q: Why, after millions spent on trials and appeals, with judges and juries who have very appropriately played their roles, should one man in the executive branch of government then get to decide the life or death question?

A: As my law prof once sang in class to Fiddler on the Roof, it's "Tradition!"

The sovereign's power of clemency and pardon goes back to when we had kings, when the king could also be the judge. While many other parts of the legal process have well-defined standards, I think having a safeguard providing clemency for a broad variety of reasons is useful. Example: Virginia's governor stopped the execution of a man because the state had accidentally destroyed forensic evidence that could have cleared (or reinforced) the defendant's guilt. That kind of flexibility is useful.

Q: Since the jury originally decided on death, shouldn't they get the choice to decide whether the rehabilitiation is worth a stay of execution?

A: The jury's been disbanded for years at this point. You could theoretically assemble a new jury and ask them to reassess the original judgment given all the time that's passed, but you'd need to change the law to do that. I wouldn't have a problem with that as yet another safeguard against "improper" executions, but I'd still keep the executive pardon power, just in case.

Q: In your judgment as an environmental lawyer, does Tookie Williams represent a good case for clemency?

A: He appears to be a model of rehabilitation, except that he denies responsibility for the murders that are the basis of his capital punishment. That leaves two options:

1. He's guilty, and is lying about the worst thing he's ever done to the great harm of the victims' survivors. Hardly the model case, no matter what else he's done to fight gang violence.

2. He's innocent, and the most deserving recipient of clemency on all of Death Row.

My superficial impression is that the evidence against him is strong, but not perfect. I casually allocate odds at 95% guilty, 5% innocent. No way would I allow such an execution to go forward on those odds.

Q: So what will Arnie do?

A: Schwarzenegger will occasionally reach out to the left, so long as it doesn't involve raising taxes or otherwise irritating big business. Commuting the sentence will get him in trouble with police unions, and might reduce financial contributions from knuckle-draggers. But he's in trouble and needs to take chances. I say, 55% chance he'll commute to life in prision. I assume that morality plays no role in his decision, just political calculus and personal whimsy.

So far, my success rate in political predictions in this blog has stayed at the exact same level. We'll see what happens.