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81 Or. L. Rev. 231 (2002)
Defending the Politics of Clemency

handle is hein.journals/orglr81 and id is 241 raw text is: BEAU BRESLIN*
Defending the Politics of Clemency
ypically, the process of carrying out a death sentence is
viewed almost entirely through the lens of the judiciary.
Academics and practitioners alike tend to focus on the courts
when exploring the issue of capital punishment because it is there
that one can find the most visible aspects of a death penalty case:
the jury trials, the successive habeas petitions, the last minute ap-
peals, etc. The result of such a predisposition, however, is that
many now have only a partial image of the administration of cap-
ital defenses.
Often a last resort, appeals for executive clemency represent
an equally important, but theoretically understudied, component
of most capital cases. In the past quarter century more than
forty-five prisoners have been removed from death row because
of executive orders, while countless others have not been so suc-
cessful.' What accounts for the difference between successful
clemency petitions and unsuccessful ones? Doubtless, the facts
surrounding individual defendants have something to do with a
governor's decision to grant or reject clemency. Similarly, the
perception of bias in the particular trial will have some bearing
on the decision. But perhaps the single most prominent factor in
determining whether clemency should be granted involves the
* Beau Breslin is an Assistant Professor of Government at Skidmore College. He
has a B.A. from Hobart College (1988), a M.A. from the University of Pennsylvania
(1993), and a Ph.D. in political science from the University of Pennsylvania (1996).
** John J.P. Howley is a partner in the New York office of Kaye Scholer, LLP.
His pro bono work has included representing numerous death row inmates in
habeas and clemency proceedings throughout the United States. He graduated
magna cum laude from New York Law School and received a B.A. in Government
and History from Skidmore College.
1 Radelet and Zsembik's seminal article on executive clemency in post-Furman
capital cases distinguishes between commutations granted for judicial expediency
and those granted for humanitarian reasons. For the sake of this paper, we will
focus attention only on those in the latter category. Michael L. Radelet and Barbara
A, Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. RICH. L. REV.
289 (1993).


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