Gov. Mark Warner of Virginia granted clemency to a death-row inmate on Tuesday. The execution—which was supposed to take place today—would have been the thousandth since 1976, when the Supreme Court brought back the death penalty. How does a governor grant clemency?
Any way he wants. Every state has its own rules for handling clemency requests, but many leave the final act in the governor’s hands. A state’s constitution might have a provision like that found in Article II of the U.S. Constitution, which grants the executive a broad power to pardon criminals and commute sentences. A governor with this kind of power doesn’t have to follow every one of the state’s procedures—just as the president isn’t bound by the “official” rules for presidential pardons. (A few states, like Georgia, let a review board make the final decision.)
In most cases, a governor will grant clemency by signing an executive order (sometimes called a “warrant of pardon” or “warrant of commutation”) in response to a formal petition from an inmate. When governors intercede for multiple inmates, they often sign orders for each one. Gov. Richard Celeste of Ohio, for example, signed separate warrants for all eight inmates to whom he granted clemency in 1991. So did Gov. George Ryan of Illinois, who offered pardons and commutations to around 160 death-row inmates in early 2003. (For an Explainer on the difference between clemency, pardons, and commutations, click here.)
Death-penalty proponents (unsuccessfully) challenged Ryan’s orders in court on the grounds that only 140 of the inmates had asked for clemency. Each state has its own procedure for requesting a pardon or commutation. In Virginia, an inmate must write a letter to the governor that details his crime and incarceration, his prior criminal record, and the reasons why he thinks he’s a deserving candidate. A convict in Illinois has to send a typewritten petition, in the form of “a narrative or essay that is written in complete sentences.” He also needs to sign his request and get it notarized, and he needs to prove that he sent a copy to the state prosecutor and sentencing judge. In other states, an inmate must fill out a clemency petition form or give someone else written permission to fill it out on his behalf.
Letters and forms often get passed on to a parole board, which screens out unrealistic applications and investigates others. The board may consult prosecutors and judges and hold a public hearing, before passing on its recommendation to the governor via his counsel—who typically adds his own advice. In general, convicts can file for clemency as many times as they want, but they have to wait a year or two between applications.
Sometimes an inmate must formally accept a pardon or commutation before it goes into effect. In Virginia, Gov. Warner announced his decision to grant clemency before he actually signed the executive order; the convicted killer had to sign it first. In some places, a governor can pardon a prisoner against his will.
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Explainer thanks Jane Bohman of the Illinois Coalition to Abolish the Death Penalty, Kevin Hall of the Virginia Governor’s Office, and Daniel Kobil of Capital University Law School.