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8 Tex. F. on C.L. & C.R. 191 (2003)
The Failed Failsafe: The Politics of Executive Clemency

handle is hein.journals/tfcl8 and id is 197 raw text is: THE FAILED FAILSAFE: THE POLITICS OF EXECUTIVE CLEMENCY By: Cathleen Burnett* 1. INTRODUCTION This Article discusses the role of executive clemency in light of the current political environment. Attending to the political aspects of the capital litigation process gives insight into the trends in the use of executive clemency. Focusing particularly on the form of clemency decision made by a governor after a non-binding recommendation from the Board of Probation and Parole (as in Missouri), it is clear that although party affiliation does not make a difference, other political considerations do seem to be influential in determining outcomes. The Article's conclusions look toward the winds of change in the political- social circumstances that may shift popular opinion to encourage the granting of more clemency requests in capital cases. In Herrera v. Collins, the U.S. Supreme Court acknowledged that although the criminal justice system is fallible, the integrity of the judicial system is protected by the executive branch through the mechanism of executive clemency.' Executive clemency, Justice Rehnquist declared, is the fail-safe in the legal system that prevents miscarriages of justice.2 This Article explores the counter possibility that executive clemency is so fraught with political considerations that governors, like politicians, prosecutors, and judges, are reluctant to act when correction is necessary. The clemency petition is the final appeal in a capital case before an execution and is submitted to the governor and/or decision-making board. Clemency may be granted in the form of a reprieve, a commutation or a pardon. A reprieve is a stay of execution, granting time in order to consider other issues, possibly in other jurisdictions. A commutation of sentence is a reduction of the penalty, usually to a life without parole sentence. A pardon is a complete absolution of guilt for a crime, which also releases the prisoner from the penalty for the crime. Although pardons now rarely occur in death penalty situations, before Cathleen Burnett is Associate Professor of Sociology and Criminal Justice at the University of Missouri-Kansas City. She is also an ordained deacon in the United Methodist Church. Recently she published JUSTICE DENIED: CLEMENCY APPEALS IN DEATH PENALTY CASES (2002). 506 U.S. 390, 412-17 (1993). 2 Id. at 411-12.

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