The purpose of clemency: The case of Terrance Williams

Next Wednesday, the state of Pennsylvania is scheduled to execute Terrance Williams, a man convicted of first degree murder for the death of Amos Norwood in 1984.

In 1978, after several years of controversy over the state’s capital punishment statute, the Pennsylvania legislature resurrected the death penalty in compliance with the U.S. Supreme Court’s ruling in Furman v. Georgia (1972).

In Furman, a divided bench held that when the death penalty is administered in an arbitrary and inconsistent manner, it constitutes cruel and unusual punishment in violation of the Eighth and 14th Amendments.

The decision marked a de facto four-year moratorium of the sentence as 37 states scrambled to enact new legislation in accordance with the Court’s ruling.

Since Pennsylvania’s new law took effect, the state has executed three individuals; each of them was considered “volunteers,” so termed because the prisoners waived their rights of appeal.

If Williams’ sentence is carried out on October 3, he will be the first non-voluntary execution in the state in 50 years.

But while some anti-death penalty advocates have painted Williams as a new figurehead for the abolition movement, at its heart this case is about the function of clemency in the American prison system.

As legal scholar Daniel T. Kobil argues, “clemency can be used to achieve justice, by individualizing sentencing and remitting undeserved punishment… Clemency, exercised in this way, can properly be said to be a fundamental part of any system of justice.”

The debate over clemency has a long history in the United States.

In the American colonies, clemency procedure reflected the system in place under the British crown.  Pardon powers were most often reserved for the Royal Governor, the king’s colonial representative across the Atlantic.

In the aftermath of Revolution, however, continuing concern over centralized power prompted state governments to develop their own systems for presiding over clemency.  As Kobil writes, many states created joint executive-legislative administrative boards, or vested the power to pardon solely within the legislature.

It was Alexander Hamilton, at the Constitutional Convention, who proposed that a supreme executive should “have the power of pardoning all offenses except Treason; which he shall not pardon without approbation or rejection of the senate.”

Though his ideas were intensely debated, Hamilton’s proposal ultimately won out. Article II, Section 2, of the U.S. Constitution reserves the power for according clemency within the executive branch, authorizing the President to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

While the federal government utilized its clemency power to repair national stability in moments of great social and political change – following the American Civil War, for instance – it was within each individual state where questions of clemency became part of daily legal interpretation.

Today, 29 states continue that federalist tradition, vesting sole authority to grant clemency within the office of the governor.   In five other states, clemency decisions are the purview of an administrative panel, often appointed by the governor.  And in the 16 that remain, clemency evaluations are shared between a governor and an administrative panel.

Pennsylvania is one of those 16 states.

Up until 1997, Pennsylvania state law mandated that the Board of Pardons, by majority vote, make the recommendation for clemency to the governor.  That year, though, Pennsylvania voters passed a referendum to require a undivided Board in order to stay an execution.

And it is here where Terrance Williams finds himself.

Williams, the victim of long-term physical and sexual abuse as a child and young adult, was charged in 1984 for murdering one of his attackers, Amos Norwood, the leader of the acolytes at St. Luke’s Episcopal Church in Philadelphia.

At trial, prosecutors offered evidence that the killing took place during the course of a robbery, and so, in 1986, Williams was convicted of first-degree murder and sentenced to death.

In the 26 years that have followed, Williams’ attorneys exhausted the appeals process.  Last week, the State Pardon Board convened to determine whether Williams should be granted clemency, reducing his sentence from death to life imprisonment.  After a 90-minute session, the board reached a 3-2 decision in favor of Williams.

Based on the 1997 law, clemency requires a unanimous vote.

Critics charge that these results misconstrue the purpose of clemency.  They argue that the pardon system was designed for cases like Williams’.  They point to statements by members of the original jury, who have said that they would not have sentenced him to death had they known of the history of abuse.  They point to the victim’s widow, who has spoken out in favor of leniency.  They point to Marc Draper, Williams’ accomplice and a key witness at trial, who has since recanted his testimony that the murder took place during a robbery.

This week, defense attorneys filed new evidence with the court, including material they claim corroborates the charges of Norwood’s sexual assault on Williams.  They are asking Judge M. Theresa Sarmina to vacate the 1986 sentence and grant a new hearing based on this latest evidence.  There, a jury would determine whether Williams should be executed or spend the rest of his life in prison.

The court is scheduled to announce its ruling Friday morning.

Around the country, death penalty advocates and abolitionists alike will be watching Pennsylvania in the coming week as the state government grapples with this new information and determines what should happen to Terrance Williams.

The fate of Williams may also help determine to future of clemency procedure in Pennsylvania.

For further reading:

Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King [69 Tex.L.Rev. 569 (1991).

Andrew Cohen, “In Pennsylvania, a Clemency Catch-22,” The Atlantic, 19 September 2012
